Arizona Republicans backed a trio of proposals on Wednesday that would make it a state crime for migrants to cross the border, waving away questions about constitutionality despite a near identical law in Texas being taken to court for illegally co-opting the federal government’s sole authority to enforce immigration policy. 

“When you have a situation where the federal government has turned the Border Patrol into a welcome wagon that actually encourages more illegal immigration, that is the time that states must step up and do their part,” said Sen. John Kavanagh, R-Fountain Hills. 

As the 2024 election heats up, immigration has become a top concern for politicians and voters alike. In Arizona, the issue has taken center stage in response to record high migrant encounters at the state’s southern border. Last year, interactions between border officials and migrants at the Tucson border sector, which stretches across 262 miles, outnumbered those at all other US-Mexico border sectors for five consecutive months last year. In January, however, encounters at Arizona’s southern border, and across the country, saw significant drops

Claims that border officials let everyone in are false. Those hoping to apply for asylum must meet specific criteria, and, according to reports from U.S. Customs and Border Patrol, the majority of people who crossed the country’s southwest border in the past three years have been removed, returned or expelled. 

Still, for GOP lawmakers in the Arizona legislature, the situation at the border warrants state intervention. Senate Bill 1231 would allow state and local police to arrest migrants they suspect of illegally crossing the southern border between ports of entry and would empower Arizona judges to issue orders of deportation. 

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People found guilty of crossing the border could be charged with a class 1 misdemeanor, and would face up to 6 months in jail, unless they agree to return to Mexico voluntarily. Harsher sentences would be applied for repeat violations.

Sen. Janae Shamp, R-Surprise, the bill’s sponsor, criticized the Biden administration’s immigration policies, and said local law enforcement officials should be given more power to prevent illegal border crossings. 

“Our law enforcement is overwhelmed by the chaos created by Biden’s open border policies, and it’s time to take the handcuffs off of our law enforcement,” she said. 

Shamp claimed that “100%” of the Arizona Sheriff’s Association supported the bill, but the group did not register an official position on the measure. In fact, no law enforcement organizations or groups have come out in support of the bill.

Warnings from Democratic lawmakers that the measure would result in increased racial profiling in the style of SB1070, the state’s notorious “show me your papers law” from 2010, or lawsuits over its constitutionality similar to the one Texas is now grappling with, were dismissed by supporters as missing the point. 

Sen. Rosanna Gabaldón, D-Sahuarita, called on Republicans to consider the potential harm the measure represents for Arizona’s minority populations. Much like SB1070, which allowed police to detain people based on a “reasonable suspicion” of unlawful presence in the state, the Texas-copycat bill leaves it up to law enforcement officials to decide who warrants investigation and arrest. 

Gabaldón said she was pulled over more than ten times in the aftermath of SB1070 and became emotional as she talked about the effect on her mother, a naturalized citizen, during one such stop. 

“I remember the fear in my mother’s eyes,” she said, her voice breaking. “This is going to begin again. My mother, the people I represent are going to be pulled over. I can take care of myself, I can talk to those law enforcement (officers). But how many people are going to be impacted by that?”

If we have to go back to the Supreme Court we will, because, frankly, I think this Supreme Court will back the protection of the borders of the United States.

– Sen. John Kavanagh, R-Fountain Hills

Sen. Flavio Bravo, D-Phoenix, recalled the court challenges Arizona dealt with after SB1070, and warned that renewed attempts to usurp the federal government’s authority over immigration law would have the same results. In 2012, just two years after the law was passed, the U.S. Supreme Court struck down three of the SB1070’s four provisions — all of which had to do with what the court determined were illegal encroachments on the federal government’s sole and superior power to enforce immigration policy

Bravo added that the state has enough financial troubles without adding costly litigation to the pile. Arizona is staring down a $1.4 billion dollar deficit and lawmakers have yet to find a solution. 

“Our state went on to pay over $1.4 million in litigation (over SB1070), only for unconstitutional provisions to be removed,” Bravo said. “Our reputation as a state was damaged, and during a time when we are facing a budget deficit, it is irresponsible to repeat the same mistakes of the past that would only invite more costly lawsuits.”

Republicans were unswayed, touting the proposal as a necessary protection for the state, and painting migrants as criminals facilitating the spread of fentanyl. 

Shamp, a former nurse who said she’d helped rape victims and children experiencing overdoses, said her proposal isn’t meant to regulate immigration, but is rather a public safety measure that aims to address the source of many crimes.  

“We have legislation to make sure that Narcan is available to anyone that needs it so that we do not have children and innocent people dying from the drugs that are coming across that border,” she said, heatedly. “I’m offended that anyone — I’m ashamed at anyone that makes this about immigration because that’s not what this is.”

Federal data shows that fentanyl is largely smuggled into the country by U.S. citizens via the ports of entry, and the vast majority of it is intercepted by port officials.

Majority Leader Sonny Borrelli, R-Lake Havasu City, read aloud a list of names that he claimed were illegal immigrants who committed crimes, including rape and murder, against U.S. citizens. 

And Sen. Anthony Kern, R-Glendale, evoked imagery from the Oct. 7 attack on Israel by Hamas to warn that migrants, who are increasingly from other countries, might be terrorists in disguise. 

“These people coming across our southern border are from 165 different nations,” Kern said. “If you think that everyone is coming to get a better life or for humanitarian reasons, that is an absolute lie. One hundred sixty five different nations — many coming from nations that we deem terrorist nations.”

The COVID-19 pandemic contributed to a spike in overall global migration, and trends at the Arizona border are no different. At the state’s southern border, some of the populations that have seen the highest increases in representation are Chinese and Indian migrants. Chinese migrants report wishing to leave a sluggish economy and an increasingly repressive government, both of which were worsened by the country’s stringent COVID-19 protocols. And many Indian migrants are escaping government oppression of religious minorities, including Muslims, Sikhs and Christians.  

And GOP lawmakers were equally unconvinced by warnings that the proposal would be tied up in constitutionality challenges. 

“We don’t legislate based on what may or may not happen in a court,” Shamp said.

Kavanagh added that the high court’s firmly established conservative bench might even prove an ally of the legislation. 

“If we have to go back to the Supreme Court we will, because, frankly, I think this Supreme Court will back the protection of the borders of the United States,” he said. 

The proposal was approved along party lines by a vote of 16-13, with only Republicans in support. It next travels to the House of Representatives for consideration. An emergency measure attached to the bill, which would have allowed it to be implemented immediately if the governor signed it, failed because it requires a two-thirds majority vote. 

The bill is almost certainly doomed to be vetoed by Gov. Katie Hobbs, who, despite repeatedly criticizing the federal government’s approach to immigration policy, has advocated for humane immigration solutions. 

House Republicans: We ‘dare’ Katie Hobbs to veto this

Meanwhile, GOP lawmakers in the House of Representatives gave preliminary approval to two near-identical versions of the Senate’s state crime bill. House Bill 2821 mirrors the Senate bill, while House Bill 2748 includes an amendment that calls on the Arizona attorney general to lobby the federal government for reimbursement of any state funds used to address illegal immigration. 

Both await a final vote from the House. 

Rep. Steve Montenegro, who sponsored one of the House bills and also co-sponsored SB1070 in 2010, defended his proposal against accusations that it might lead to racial profiling by accusing Democrats of advancing prejudices for interpreting it that way. 

“This claim that this is about targeting minorities or targeting Hispanics, frankly, it’s offensive,” the Goodyear Republican said. “What you’re doing is you’re automatically attributing illegal immigration to Hispanics.” 

While immigration demographics at the state’s southern border are increasingly diverse, the bulk of Arizona immigrants remain Hispanic. In 2022, as much as 61% of immigrants in Arizona were from Latin American countries, including Mexico, South and Central America, according to data from the Migration Policy Institute

And CBP data indicates that slightly more than half of all migrants crossing the southwestern border between the ports of entry continue to be from four Latin American countries: Mexico, Guatemala, Honduras and El Salvador.

Montenegro added that criticisms that the bill would result in constitutionality challenges are also unfounded, because many state laws build on federal ones. As an example, Montenegro pointed to laws around the legality of certain drugs, which exist at both the federal and state levels. 

House Democrats questioned the use of introducing bills that will ultimately get rejected by Hobbs. Rep. Marcelino Quiñonez, D-Phoenix, dismissed the proposals as nothing more than political grandstanding destined for a veto and called on Republicans to stop introducing such legislation. 

“We’re having this debate, knowing that it’s not going to amount to anything,” he said. “So, in the interest of saving us all time, I would ask all of the members on the other side to not bring these things up because we know the outcome of them.” 

Republicans rebutted that a rejection from Hobbs would be a boon for their party, by demonstrating that Democrats don’t support measures to keep Arizonans safe. 

“I hope and I dare her to veto this bill, because it will make it clear to them which party is standing up for the interests of Arizona,” Rep. Justin Heap, R-Mesa, said. 

“At the end of the day, Arizonans depend on the occupants of the Ninth Floor to protect them and I want to know: Will Katie Hobbs protect us?” echoed Rep. Alexander Kolodin, R-Scottsdale.

Should Arizona voters label drug cartels as terrorist organizations?

Also given initial approval on Wednesday was House Concurrent Resolution 2048 which, if passed by both chambers of the Republican-majority legislature, would give voters the choice to designate drug cartels as terrorist organizations. Because the measure would be sent to the November ballot, it only requires legislative support, and would bypass Hobbs’ veto stamp. 

Montenegro, the resolution’s sponsor, pushed an identical iteration last year as a bill that was promptly killed by Hobbs. Running it by the Arizonans, he said, ensures they’re given a final say in how to respond to organized crime. 

“We have drug cartels in Arizona that are terrorizing the state,” the Goodyear Republican said. “The bill version of this was vetoed last year. I think it’s time to ask the voters what they think.”

It’s unclear, however, if designating which groups amount to terrorist organizations is something the state can do — or what, exactly, that might accomplish. Defining terrorist organizations is a power of the federal government, whose list includes groups like Al-Qaeda and the Khmer Rouge. 

The Arizona Department of Homeland Security, which would be responsible for responding to drug cartel activity if voters were to approve the resolution, currently develops policies to defend against federally-designated terrorist organizations and handles federally-funded grants to do the same. 

Democrats said they fear that increasing penalties against drug cartels would harm low-level offenders and worsen the situation at the state’s southern border. 

“HCR2038 will further militarize our border,” warned Rep. Analise Ortiz, D-Phoenix. “It’s so broad that anyone caught selling drugs could potentially face terrorism charges.” 

The resolution defines a drug cartel as a group engaged in drug trafficking for profit or human smuggling. 

And an amendment added to the resolution that denies migrants the right to claim asylum based on the new understanding of drug cartels as terrorist organizations was cause for further criticism from Democrats, who denounced it as unjust.

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