Fact Checking The Sunday Shows - May 2, 2010

Face the Nation

CLAIM: Republican Senate Candidate J.D. Hayworth Claimed That The New Immigration Enforcement Law Does Not Allow Profiling.

J.D. HAYWORTH: I would suggest that the law here in Arizona is designed quite simply to enforce federal law. And I think what has been going on here has been a massive disinformation campaign and distortion, for example, let me read directly from the law. It says the law quote 'shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and uh, and immunities of United States citizens.' The key phrase, 'protecting the civil rights of all persons.'

FACT: Law requires police to determine a person's immigration status "if they form a 'reasonable suspicion' that someone is an illegal immigrant."

AZ Bill "Requires Police" To Determine A "Person's Immigration Status."  The Los Angeles Times reported that the newly passed Arizona immigration "bill, known as SB 1070, makes it a misdemeanor to lack proper immigration paperwork in Arizona. It also requires police officers, if they form a 'reasonable suspicion' that someone is an illegal immigrant, to determine the person's immigration status." [Los Angeles Times, 4/14/10, emphasis added]

FACT: The Arizona law's "reasonable suspicion" standard makes racial profiling possible.

PolitiFact: Reasonable Suspicion "Leaves Open Several Possibilities" For Profiling. In a lengthy examination of a previous claim made by Arizona State Sen. John Huppenthal, PolitiFact.com consulted legal experts and concluded that the law does not prohibit profiling:

"Perhaps the ambiguities of the law will one day be settled in the courts. But we think that a close reading of the statute and the views of the experts we contacted allow us to draw some conclusions.

Huppenthal's position -- that the police must suspect that something illegal is being committed before asking someone for proof of legal status -- is not correct. The law says the police officer just needs "reasonable suspicion'' that the person is an alien that is unlawfully present in the United States. The police are prohibited from using a profile based solely on racial or ethnic factors, but that standard can be sidestepped. In addition, some seemingly innocuous behaviors like getting in a car or making a gesture or nodding could be seen by a law officer as "reasonable suspicion" of the newly enacted prohibition against seeking work while in the U.S. illegally.

The passage in the law citing racial profiling does provide some protection, as does the difficulty of defining a profile for illegal immigrants that could pass legal muster, but the law leaves open several possibilities for police questioning individuals without seeing or suspecting a specific crime. So we rate Huppenthal's statement False." [PolitiFact.com, 4/26/10, emphasis added]

CLAIM: Republican Senate Candidate J.D. Hayworth Implied That The Modified Bill Makes Racial Profiling Impossible.

J.D. HAYWORTH: Now Harry what's going on is a deliberate distortion to move this from a question of enforcement to one of ethnicity. It's not the case, I read you the language of the bill.

HARRY SMITH (host): Hang on a second. But JD, let me ask you this. If you were Hispanic and you were walking down the street in Arizona would you have some concern if a squad car drove by?

HAYWORTH: No I would not because there has to be reasonable suspicion. The law is very finely crafted.

SMITH: It was amended-- It was amended Friday.

HAYWORTH: Because, because, because good-- people of good will want to go the extra mile to ensure there is not a hint of racism here.

FACT: Modifications to the bill maintain the "reasonable suspicion" standard.

AZ Gov. Brewer Signed Follow-On Legislation To "Quell Concerns" About Racial Profiling. According to the Associated Press: "Gov. Jan Brewer on Friday signed a follow-on bill approved by Arizona legislators that makes revisions to the state's sweeping law against illegal immigration. She said the changes should quell concerns that the measure will lead to racial profiling. The law requires local and state law enforcement officers to question people about their immigration status if there is reason to suspect they are in the country illegally, and it makes it a state crime to be in the United States illegally." [AP via New York Times, 4/30/10]

Follow-On Changes Do Not Include Definition Of What Constitutes "Reasonable Suspicion." According to the Arizona Capitol Times:

"H2162 prescribes a few key changes to the new immigration law, clarifying both the definition of lawful contact and guidelines for municipalities, as well as lowering the minimum - not the maximum - fine that can be assessed to cities that have so-called "sanctuary city" policies. It also restructured some of the punitive actions that a court would apply to those charged under the new law.

[....]

One of the changes to S1070 removes the word "solely" from the description of the new law's lawful contact, when it comes to race. So, now race, color or ethnicity simply cannot be used as part of reasonable suspicion.

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The last change outlined in H2162 concerned a phrase that said lawful contact can include an officer's use of the new immigration law "in the enforcement of any other law or ordinance of a county, city or town or this state." [Arizona Capitol Times, 4/27/10]

Immigration Law Expert: "Reasonable Suspicion" Is "Vague" And "Gives Institutional Cover For Selective Immigration Enforcement." According to UCLA School of Law professor and immigration law expert Hiroshi Motomura, writing in the New York Times: "In judging whether immigration enforcement adheres to the rule of law, it is most important to examine how laws are enforced. From this perspective, it is deeply troubling that Arizona's new law uses a vague 'reasonable suspicion' standard. This standard gives institutional cover for selective immigration enforcement through racial and ethnic profiling, and for this reason it will lead to constitutional violations if the statute goes into effect." [New York Times, 4/26/10, emphasis added]

American Immigration Lawyers Association Leader: 'Reasonable Suspicion' In AZ Law "Effectively Requires" Racial Profiling. According to AILA President-elect David Leopold, writing for The Wonk Room:

"Frankly, [the law's co-author Kris] Kobach is intellectually dishonest to claim that "reasonable suspicion" will not turn Arizona into a "show me your papers" state by effectively forcing the police to use racial profiling. What Kobach fails to point out is that law enforcement may question anyone under the Arizona law whom they suspect is an undocumented immigrant once they have made "lawful contact." Arizona law does not define what "lawful contact" means and, therefore, the phrase is open to very broad interpretation by the police. It does suggest some limit, but that limit is well short of the "reasonable suspicion" standard (articulable facts, along with rational inferences that arise from those facts) set forth by the U.S. Supreme Court in Terry v. Ohio. Why else would the drafters of the Arizona legislation have felt the need to use the term "legal contact" and as a pre-requisite to "reasonable suspicion" rather than "reasonable suspicion" of criminal activity? For example, if someone approaches a police officer on the street, there is "legal contact". If the person then speaks English with an accent or "looks Latino" that might raise "reasonable suspicion" that the person is not documented. While "reasonable suspicion" under Terry v. Ohio is based on criminal activity, "reasonable suspicion" under S.B. 1070 is based on a subjective notion of a person's status. The Arizona law not only doesn't prohibit racial profiling, it effectively requires it." [The Wonk Room, 4/29/10, emphasis added]

FACT: The follow-on law expands the basis for reasonable suspicion to include municipal ordinance violations.

The Follow-On Legislation Allows Officers To Pursue Immigration Questions During Enforcement Of Local Ordinances. According to the Los Angeles Times: "Lawmakers on Thursday night also added a provision extending immigration enforcement to local ordinances, which critics warned could permit police to check the immigration status of people guilty of nothing more than a poorly tended lawn." [Los Angeles Times, 5/1/10]

"Cars On Blocks In The Yard" Could Lead To Immigration Inquiries. According to the Arizona Republic: "Rep. Kyrsten Sinema, D-Phoenix, said those two changes help clarify the bill, and lighten its impact somewhat. But she called a third change "frightening." That change clarifies that a police officer responding to city ordinance violations would also be required to determine the immigration status of an individual they have reasonable suspicion of being in the country illegally. City ordinance violations vary by municipality but could include things like loud parties, barking dogs, cars on blocks in the yard or too many renters." [The Arizona Republic, 4/29/10]

FACT: Lawyer who helped draft the law wanted to make sure police could "initiate queries" based on "cars on blocks in the yard."

Kris Kobach: "We Need To...Allow Police To Use Violations Of Property Codes (e.g. Cars On Blocks In The Yard)...To Initiate Queries." According to The Wonk Room:

"Wonk Room recently obtained an email written by Kris Kobach, a lawyer at the Immigration Reform Law Institute - the group which credits itself with writing the bill - to Arizona state Sen. Russell Pierce (R), urging him to include language that will allow police to use city ordinance violations such as "cars on blocks in the yard" as an excuse to "initiate quieries" in light of the "lawful contact" deletion:

 

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More importantly, Kobach is basically admitting to Pearce that by allowing police to use the violation of "any county or municipal ordinance" as a basis for inquiring about a person's immigration status, the bill will still cast a wide enough net to help offset the effect of omitting the "lawful contact" language which would've allowed police to ask just about anyone they encounter about their immigration status."

[Wonk Room, 4/30/10]

Meet the Press

CLAIM: Rep. Mike Pence Said The Stimulus Bill Has Caused Unemployment To Rise.

REP. MIKE PENCE: As Republicans were fighting against the so-called-- yeah, the so-called stimulus bill that has taken us from 7.5% unemployment to nearly 10% nationwide, worse in Michigan. Governor Crist, different from Republicans in Washington D.C. decided to embrace the President's policies, literally embrace the President.

FACT: Monthly job losses have steadily declined since the American Recovery and Reinvestment Act became law.

One Year After The Recovery Act, America Is On The Road To Recovery. Below is a graph prepared by the Speaker's office showing job gains/losses per month:

[Office of the Speaker, accessed 2/17/10]

FACT: Stimulus spending has created millions of jobs.

CBO: The American Recovery And Reinvestment Act Has Created Up To 2.4 Million American Jobs. According to CNN: "The Congressional Budget Office attributes between 800,000 to 2.4 million jobs and 1.2 to 3.1 percentage points of economic growth to stimulus." [CNN, 1/13/10]