Don’t We Like Them Illegal? Gerald P. López* Art by Andrea Matsuoka To celebrate Keith Aoki, the editors of the UC Davis Law Review invited participation in this special issue. Keith would not likely agree with all this Article says, but I write to honor his life and his work. Thank you for the privilege. TABLE OF CONTENTS INTRODUCTION ................................................................................. 1713 I. THE PREVAILING THEORY OF UNDOCUMENTED MEXICAN MIGRATION ............................................................................ 1720 A. Coming to Appreciate the Existence of a Prevailing Theory ............................................................................. 1720 B. The Prevailing Theory Undiluted ..................................... 1722 C. Suspicions About the Prevailing Theory ........................... 1723 II. A RIVAL THEORY OF UNDOCUMENTED MEXICAN MIGRATION .. 1724 A. Developing a Rival Theory and Appreciating the Allegiance to the Prevailing Theory ................................. 1724 B. The Rival Theory Undiluted ............................................. 1728 III. HISTORY SEEN THROUGH THIS RIVAL THEORY ........................ 1734 A. A New Border to Disregard and a New Racism to Face .... 1737 B. Recruitment of Cheap Labor and Degradation of the Recruited People .............................................................. 1742 C. Whipsawing the Chinese — A Playbook for the Future .... 1744 * Copyright © 2012 Gerald P. López. Professor of Law, UCLA School of Law; Co-Director, Rebellious Lawyering Institute. Thanks to students in Rebellious Lawyering Workshops for terrific work on community immigration fieldwork projects, and particularly to Kenia Acevedo, Brett Beeler, Lauren Frinkman, Martha Liliana Gómez, Rostilav Klibaner, Christian Kurpiewski, Brenda Montes, Siobhan Waldron, and Jennifer Yanni for their inspired discussions about immigration policies. Thanks to June Kim and Tara Kearns for their superb contributions to our Arizona and National Immigration Crisis Library Guide, and to all the UCLA School of Law librarians for wonderful guidance and support. Special thanks to Andrea Matsuoka for her creative collaboration. 1711 1712 University of California, Davis [Vol. 45:1711 D. Courting and Turning on the Japanese ............................. 1752 E. Mexicans ......................................................................... 1755 1. Entrenching Undocumented and Documented Mexican Migration ................................................... 1758 2. The Structure of the Two Systems Exposed ............ 1763 IV. RECENT HISTORY SEEN THROUGH THIS RIVAL THEORY ........... 1773 A. The Passage of the Immigration Reform and Control Act and the Coming of the North American Free Trade Agreement ....................................................................... 1773 B. California’s Proposition 187 — Its Ripple Effects ............. 1776 V. ENDANGERING THE SYSTEMS .................................................. 1780 A. Clinton and Bush ............................................................. 1780 B. Taking Stock of Clinton and Bush .................................... 1789 C. Obama ............................................................................. 1793 D. Arizona and Obama......................................................... 1797 VI. EPILOGUE ............................................................................... 1810 2012] Don’t We Like Them Illegal? 1713 INTRODUCTION The thunderous clash over the problem of undocumented Mexicans continues. The Obama Administration believes we should make the border nearly impossible for undocumented Mexicans to cross, life in the United States at every moment vulnerable to immediate deportation, and amnesty perhaps available as part of “Comprehensive Immigration Reform.”1 Obama’s critics include, among the more xenophobic, those who would make the border literally impossible for undocumented Mexicans to pass through and life in the U.S. literally impossible to survive and, among the more broad-minded, those who would greatly humanize the Obama Administration’s border and detention and deportation programs.2 1 AARTI KOHLI ET AL., SECURE COMMUNITIES BY THE NUMBERS: AN ANALYSIS OF DEMOGRAPHICS AND DUE PROCESS (2011), available at http://www.law.berkeley.edu/ files/Secure_Communities_by_the_Numbers.pdf (showing that Border Patrol Agent numbers are at an all time high and stating that “[t]he United States will deport a record number of individuals this year, due in large part to rapidly expanding federal immigration programs that rely on local law enforcement”); see Border Double- crossings, L.A. TIMES, Apr. 2, 2011 (showing that immigration enforcement spending hit an all time high in 2011 and employer audits quadrupled under Obama); Borderline Ridiculous: The Republican Presidential Candidates Get Immigration Wrong, N.Y. TIMES, Sept. 17, 2011, at A20; Sense, and Nonsense, on the Border, WASH. POST, Dec. 14, 2011, at A22 (“The border today is more tightly sealed than at any point in decades.”); Robert Farley, Obama Says Border Patrol Has Doubled the Number of Agents Since 2004, POLITIFACT (May 10, 2011), http://www.politifact.com/truth-o- meter/statements/2011/may/10/barack-obama/obama-says-border-patrol-has-doubled- number-agents. Obama has also continued the Bush policy of spending billions on fencing, agents, spy planes, and seismic sensors. 2 See generally Keith Aoki & John Shuford, Welcome to Amerizona — Immigrants Out!: Assessing “Dystopian Dreams” and “Useable Futures” of Immigration Reform, and Considering Whether “Immigration Regionalism” Is an Idea Whose Time Has Come, 38 FORDHAM URB. L.J. 1 (2010) (envisioning progressive U.S. immigration reform shaped by public, private, and civic assessments undertaken on a regional basis); Immigration Hoopla; In Spite of Candidates’ Rhetoric, Reason May Yet Prevail on Immigration Issues, HOUS. CHRON., Dec. 9, 2011, at B8 (discussing xenophobic rhetoric from 2012 Republican candidates, including a double fence along the entire border, complete with alligator-filled moat and electric charge). For criticisms of Obama’s policies, Ruben Navarrette, Jr. prefers the term “heartless,” see Ruben Navarrette, Jr., Obama Takes Latino Votes for Granted, NEWSDAY (Nov. 22, 2011), http://www.newsday.com/ news/navarrette-obama-takes-latinos-for-granted-1.3341146. The New York Times calls for a more humane policy. See Editorial, Resistance Grows: Massachusetts, New York and Illinois Reject the Obama Enforcement-Only Way, N.Y. TIMES, June 8, 2011, at A22 (“As Mr. Obama has driven deportations to record levels, he has gotten no closer to fixing a failed system . We welcome the votes of no-confidence in Secure Communities. The message is clear and growing louder: Mr. Obama and the homeland security secretary, Janet Napolitano, need to try something else. That something else is real immigration reform that combines a path to legality with 1714 University of California, Davis [Vol. 45:1711 Even this fierce crossfire understates the conflict. People across all fronts debate whether the federal government’s constitutional control over immigration ought to be plenary as traditionally understood. Some would permit states like Arizona and Alabama to act as they feel they must.3 Others defend the right of municipalities to declare themselves sanctuary cities.4 Still others insist we need undocumented Mexicans legalized through various legal channels, including guest worker programs, while others still recoil at the memory of a Bracero Program where the federal government never equipped itself to enforce the conditions of health and safety and the fair wages assured immigrant workers.5 necessary measures to secure our borders and deport real criminals who are here illegally.”); Michelle Fei, More Double Punishment for Immigrants with Convictions, NEW AM. MEDIA (Aug. 30, 2011), http://newamericamedia.org/2011/08/more-double- punishment-for-immigrants-with-convictions.php. 3 See, e.g., Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration, 22 GEO. IMMIGR. L.J. 459, 463-82 (2008) (“[T]here is wide latitude for states and municipalities to act without being preempted, provided the statutes are drafted correctly.”); Kris W. Kobach, Why Arizona Drew a Line, N.Y. TIMES, Apr. 28, 2010, at A31 (“But we already have plenty of federal immigration laws on the books, and the typical illegal alien is guilty of breaking many of them. What we need is for the executive branch to enforce the laws that we already have. Unfortunately, the Obama administration has scaled back work- site enforcement and otherwise shown it does not consider immigration laws to be a high priority. Is it any wonder the Arizona Legislature, at the front line of the immigration issue, sees things differently?”); Hans A. von Spakovsky, Team Obama’s Immigration Hypocrisy, FOX NEWS, Dec. 13, 2011, http://www.foxnews.com/opinion/ 2011/12/13/team-obamas-immigration-hypocrisy/ (“It’s time for the Obama administration to stop suing states and start cooperating with them, encouraging them to help the federal government find, detain and deport illegal immigrants.”); George F. Will, A Law Arizona Can Live With, WASH. POST, Apr. 28, 2010, at A21 (“Arizona’s law makes what is already a federal offense — being in the country illegally — a state offense. Some critics seem not to understand Arizona’s right to assert concurrent jurisdiction.”). 4 See Michael Melia, Mayor Seeks to Let Illegal