ARIZONA SB 1070 CASES: FRIENDLY HOUSE V. WHITING
Five cases have already been filed in federal court in Arizona to stop
SB 1070, Arizona's new immigration law, from ever being enforced.
Friendly House v. Whiting is one of the cases. It wants SB 1070 to be declared unconstitutional.
In the Friendly House case, the nation of Mexico has submitted a
"friend of the court" brief. The complete brief is online at
Below are the arguments in Mexico's brief, in text format.
INTEREST OF THE AMICUS CURIAE
The United Mexican States ("Mexico") respectfully submits this amicus
curiae brief to express its grave concerns over [SB 1070], and to
underscore the importance of declaring SB 1070 unconstitutional in its
Mexico seeks to ensure that its bilateral diplomatic relations with the
United States of America ("U.S." or "United States") are transparent,
consistent and reliable, and not frustrated by individual U.S. states'
actions, in particular the Arizona Defendants herein.
SB 1070 substantially impacts Mexico, its officials and citizens, by
inappropriately burdening the uniform and predictable
sovereign-to-sovereign relations, opening the door to divergent
requirements among the different states, and with respect to the
Under Article 5(a) of the Vienna Convention on Consular Relations, to
which both countries are signatories, Mexico has a right to protect the
interests of its nationals within the limits of international law.
Mexico seeks to assure that its citizens, present in the United States,
are accorded the human and civil rights granted under the U.S.
Constitution; having therefore a substantial and compelling interest in
protecting its citizens and ensuring that their ethnicity is not used
as basis for state-sanctioned acts of discrimination, including the
inequitable application of civil and criminal laws and state's law
enforcement powers. SB 1070 creates an imminent threat of
state-sanctioned bias or discrimination, resulting not only in
individual injury, but also in broader social and economic harms to its
citizens, undermining Mexico–U.S. relations.
The enactment of SB 1070 has been closely followed at the highest
levels of the Mexican government and throughout Mexican society.
The issues raised herein are of great importance to the people of
Mexico, including the almost twenty million Mexican workers, tourists
and students lawfully admitted to the United States throughout 2009,
those already present or who will similarly be admitted to the U.S in
the future, and the countless millions affected by international trade,
immigration policies and drug violence.
The government of Mexico respectfully submits that SB 1070 adversely
impacts the bilateral relations between Mexico and the United States,
as well as law abiding Mexican citizens and other people of
Latin-American descent present in Arizona as argued by Plaintiffs.
I. SB 1070 Impedes International Relations; There Needs to Be One Cohesive, Consistent and Controlling United States Voice
"The Federal Government, representing as it does the collective
interests of the [fifty] states, is entrusted with full and exclusive
responsibility for the conduct of affairs with foreign sovereignties."
Through SB 1070, Arizona imposes its own independent and conflicting
requirements. Arizona does this despite specific provisions of
federal immigration law that permit Arizona to assist with the
enforcement of immigration law after receiving federal approval and
appropriate training to ensure constitutionality.
Arizona's unilateral action burdens Mexico enormously by forcing its
officials and citizens to respond to divergent requirements imposed by
the different divisions of the U.S. government. In order to
conduct effective diplomatic relations with the U.S., countries such as
Mexico need and depend on transparent, consistent and reliable
bilateral negotiations. Amicus cannot effectively collaborate
with the United States on a sovereign basis to address inherently
international matters such as immigration, trade and security, if U.S.
political subdivisions establish their own requirements that conflict
not only with each other but also with the efforts, priorities and
commitments of the U.S. federal government.
SB 1070 adversely impacts U.S. relations with foreign countries,
directly interfering with the U.S. Department of State's ability to
conduct foreign affairs and policy.
As conveyed by U.S. Secretary of State Hillary Clinton, although SB
1070 is not yet in effect, it is already straining U.S.–Mexico
Mexico's ambassador to the U.S. Arturo Sarukhan explains that SB 1070
"threatens to poison the well from which our two nations have found and
should continue to find inspiration for a joint future of prosperity,
security, tolerance and justice."
A. SB 1070 Will Severely Hinder Trade and Tourism Between Mexico and Arizona
One area of great concern to Mexico relates to the repercussions of SB
1070 on trade and commercial relations with the United States.
Growth in U.S. trade with Latin America has historically outpaced that
of all other regions.
Mexico is the third largest trading partner of the United States and the second purchaser of U.S. exports.
The interaction of labor markets, tourism, business travel, and student
migration between the countries is widespread and of great importance
to both economies.
A University of California study estimates that immigration into the
United States over the 1990–2006 period increased U.S. economic
efficiency, resulting in a 2.86% real wage increase for the average
In particular, each day approximately 65,000 Mexicans are admitted into
Arizona; and each day they spend an average of $7.35 million in its
stores, restaurants, hotels and other businesses.
SB 1070 poses a threat to this mutually beneficial trade between the two nations.
As discussed in more detail in Section II, if SB 1070 takes effect,
Mexican citizens will be afraid to visit Arizona for work or pleasure
out of concern that they will be subject to unlawful police scrutiny
To enhance the benefits of economic trade and collaboration, the United
States and Mexico have pursued trade liberalization through
collaborative multilateral, regional and bilateral negotiations,
resulting in advantageous multi-faceted economic relationships (e.g.
North American Free Trade Agreement).
Diplomacy is crucial to such negotiations. SB 1070 impedes
collaboration by pushing "nations that work together and trade" to
"mutual recrimination, which has been so useless and damaging in
Strained diplomatic ties substantially impede the ability of the U.S.
and Mexico to collaboratively develop, enhance and maintain commercial
ties critical to their economies.
B. SB 1070 Derails Efforts Towards Comprehensive Immigration Reform
With over eleven million nationals in the U.S., Mexico has a
significant interest in U.S. comprehensive immigration reform.
The United States is equally interested in Mexico's involvement.
In fact, one of the five immigration principles of the Obama
administration is to collaborate with Mexico.
Immigration was a principal topic discussed by the presidents of Mexico
and the U.S. in their May 19, 2010 meeting. As President Barack
Obama acknowledged, both countries share a responsibility to address
the issue. Among the responsibilities, he noted Mexico's efforts
to create jobs and the United States' efforts to "fix our broken
Both presidents expressed their belief that SB 1070 is a "misdirected
effort" to address immigration concerns, and that collaboration among
the two federal governments is essential to ensure that immigration
reform "does not have an adverse impact on the economies of [the
The effects of U.S.-Mexico migration to labor markets, tourism,
business travel, and education [are] of great importance to both the
U.S. and Mexico.
Mexican citizens comprised the highest percentage (12%) of the 163
million non-immigrants legally admitted into the United States in 2009,
including tourists, business travelers, specialty workers and students.
Furthermore, as noted by President Obama, the countries also profit from the intellectual exchange.
Immigration policy is crucial to the communities of the 2000-mile
U.S.-Mexico border. As noted by President Obama, "there are
enormous flows of trade and tourists and people along the border
region; the economies are interdependent[.]"
In addition to immigration, law enforcement policies are critical to
border areas highly susceptible to drug-related violence.
Accordingly, [r]ecognizing the importance of securing and facilitating
the lawful flow of goods, services, and people between their
countries[,] [u]nderstanding that joint and collaborative
administration of their common border is critical to transforming
management of the border to enhance security and efficiency[, and
u]nderstanding that law enforcement coordination between the
Participants is essential to preventing crime and to disrupting and
dismantling transnational criminal organizations[,]" on May 19, 2010,
amicus and the United States entered into the Declaration by The
Government Of The United States Of America and The Government Of The
United Mexican States Concerning Twenty-First Century Border Management
to express their commitment to strengthen collaboration to enhance
economic exchange, lawful travel, and to dismantle criminal
It is due to the social, economic, intellectual and security benefits
of international collaboration, that the United States federal
government and Mexico recognize the importance of comprehensive
Through SB 1070, Arizona impinges upon the US-Mexico bilateral agenda
and obstructs the bi-national collaboration to tackle immigration and
border problems, while preserving the benefits of economic and
intellectual exchange. SB 1070 institutes an independent state
system of immigration enforcement that not only derails bilateral
economic, social and security efforts, but imperils the U.S. federal
government's efforts at a comprehensive solution for immigration
policy. Mexico cannot effectively cooperate or engage in
meaningful bilateral relations with the U.S. when states are permitted
to interfere with the sovereigns' bilateral efforts.
C. SB 1070 Obstructs International Collaboration to Combat Drug-Trafficking Organizations and Drug-Related Violence
For over thirty years, the war against drug-trafficking organizations
has been a critical issue for the U.S. and Latin American governments.
Recently, the fight against Mexican drug-trafficking organizations has
taken the spotlight. Approximately seven thousand people were
killed by drug-related violence in Mexico in the past year; 31% took
place in the border State of Chihuahua.
The current and previous U.S. administrations have recognized the
shared responsibility for drug-related violence, and determined that
"it is absolutely critical that the United States joins as a full
partner in dealing with this issue."
As numerous scholars highlight, "without changes in U.S. drug policy,
efforts to combat [drug trafficking organizations] or to address
Mexico's own growing domestic demand for drugs will be futile."
To this end, following extensive negotiations between the U.S. and
Mexico, the Merida Initiative was announced on October 22, 2007.
This initiative is a training and equipment bilateral cooperation
package intended to collaboratively strengthen the counter-narcotic
efforts of both governments.
In connection with the Merida Initiative, former U.S. President George
W. Bush stated: "The United States is committed to this joint strategy
to deal with a joint problem. I would not be committed to dealing
with this if I wasn't convinced that President Felipe Calderon had the
will and the desire to protect his people from narco-traffickers."
Cooperation under the Merida Initiative has made great strides, leading
the United States and Mexico to successfully make over a thousand
arrests, including [top members] of multiple drug-trafficking
organizations, as well as to intelligence-sharing, and strengthening
the implementation of weapon tracing and cash seizure initiatives.
As the U.S. and Mexico attempt to strengthen trust and collaboration
among bi-national federal, state and local law enforcement to attack
drug-trafficking organizations and drug-related violence, SB 1070
threatens the U.S.-Mexico efforts by straining and encumbering
bilateral collaboration. Moreover, SB 1070 will further obstruct
international goals to control drug-related violence by raising a very
real risk of reducing [crime reporting] in Arizona, including by
Mexican nationals, thereby impeding law enforcement's efforts to
continue making arrests and seizures on both sides of the border.
Former U.S. President Bush's opinion -- regarding the U.S.'s inability
to unilaterally commit to a project -- is a sentiment shared on both
sides of the border. Mexico equally cannot in good faith
negotiate and collaborate with the United States without certainty that
the bilateral efforts will not be obstructed by divergent political
subdivisions, like Arizona. This interference with federal
policies is of particular concern in U.S. border states including
Arizona, which play a significant operations role regarding the Merida
Initiative's goal of controlling weapons traffic into Mexico.
"[T]he interest of the cities, counties and states, no less than the
interests of the people of the whole nation, imperatively requires that
federal power in the field affecting foreign relations be left entirely
free from local interference."
For this reason, James Madison expressed: "If we are to be one
nation in any respect, it clearly ought to be in respect to other
As a foreign nation, Mexico has a compelling interest in maintaining
its bilateral relations based on respect for the constitutional law of
the United States, and in the invalidation of SB 1070.
II. Mexico Has a Legitimate Interest Protecting Its Citizens' Rights Under the U.S. Constitution
The Mexican government respectfully submits that history demonstrates
the state sanctioned actions, like SB 1070, violate the basic tenets of
the U.S. Constitution that [guarantee] freedom, liberty and equal
protection of the law. Sovereign actions by the United States
against minority populations at perceived times of threat have proven
unwarranted. For example, the actions taken toward
African-Americans during and prior to the Civil Rights movement
underscore the potential harm and lasting negative effects of SB 1070.
Discriminatory and biased legal enforcement have adverse legal, social,
economic and political implications, and underline Mexico's legitimate
interest in assuring that its citizens are not deprived of protection
under the U.S. Constitution and not subjected to hostile attitudes or
action by U.S. society. As of 2008, there were 11.4 million
Mexican-born individuals living in the United States, 5.4% of them
liv[ing] in Arizona.
Moreover, the Ninth Circuit acknowledged in 2000 that "[t]he Hispanic
population of the nation and of the Southwest and Far West in
particular, has grown enormously -- at least five-fold in ... [Arizona,
California, New Mexico and Texas]."
In fact, recent preliminary demographic information establishes that
minorities represent more that fifty percent of the population in
Hawaii, New Mexico, California and Texas, making use of race and
ethnicity as a law enforcement factor inappropriate.
Alongside these demographic changes, the 9th Circuit also noted that
there have been "significant changes in the law restricting the use of
race as a criterion in government decision-making," with the court
concluding that the "use of race and ethnicity for such purposes has
been severely limited."
The Court further opined that even at border check stops, "at this
point in our nation's history, and given the continuing changes in our
ethnic and racial composition, Hispanic appearance is, in general, of
such little probative value that it may not be considered as a relevant
factor where particularize[d] or individualized suspicion is required
... in determining which particular individuals among the vast
Hispanic populace should be stopped by law enforcement officials on the
lookout for illegal aliens.
Given the public rhetoric by the Arizona Governor and other state
officials, together with the implied reference in A.R.S. Sec.
11-1051(B), sending an impermissible impression of U.S. and Arizona
Constitutional support for using race and ethnicity pursuant to SB
1070, Mexico is rightfully concerned for the civil rights of its
citizens in Arizona. Until [the court case of] Montero-Camargo,
as late as 2000, U.S. Border Patrol agents impermissibly used Hispanic
appearance as a singularly sufficient basis to stop Hispanics for
A. SB 1070's Results in Racial Profiling [Are] Reminiscent of African-American Discrimination
SB 1070 gives local officers carte blanche authority to stereotype and
to rely on the popular perception that appearances of "foreign-ness"
are justifiable means for disparate treatment. These "[n]egative
stereotypes are further promulgated because profiling prompts more
investigations, which will inevitably result in more arrests and
convictions of members of the targeted group."
Commentators note that immigration enforcement, especially in the
Southwest, regularly imposes indignities on U.S. citizens and lawful
immigrants of Mexican ancestry not also imposed on the white,
Mexico is justifiably concerned that stereotypes and bias will be used
by law enforcement as state sanctioned. When Arizona Governor Jan
Brewer was asked what criteria will be used as reasonable suspicion of
a person's legal status in the U.S., she focused on the physical
appearance of "illegal immigrants," stating:
I do not know what an illegal immigrant looks
like. I can tell you that there are people in Arizona that assume
they know what an illegal immigrant looks like. I don't know if
they know that for a fact or not, but I know that if AZPosts [Arizona
Peace Officers] gets themselves together, works on this law, puts down
the description that the law will be enforced civilly, fairly and
without discriminatory points to it.
Giving state police the authority to simply create a description of
what an illegal immigrant looks like is plainly racial profiling, which
is why Mexico is concerned.
This inevitably will lead to casting an overbroad net in the pursuit of
"illegal immigrants," with individuals being stopped based on
This unfair and disproportionate targeting of Hispanics and
Latin-Americans in immigration enforcement is similar to that witnessed
by young African-American males in criminal law enforcement. One
federal judge has analogized the dangers of racial profiling in
immigration (border patrol enforcement) to the experience of driving
while black: "How is this practice distinguishable from the
former practice of Southern peace officers who randomly stopped black
pedestrians to inquire, 'Hey, boy, what are you doin' in this
B. SB 1070's Harmful Effects Lead to Dangerous Harms Spanning
From Physical Violence to Promotion of Negative, Ill-Conceived
Finally, Mexico, as a sovereign, needs to protect its people. SB
1070 endangers this goal. First, as demonstrated by New York
City's experience in the mistaken shooting deaths of two black men,
Amadou Diallo and Sean Bell, and the brutal torture of a third black
man, Abner Louima, one small mishap of racial profiling by law
enforcement can lead to public outcry and distrust of law enforcement
by local communities.
Additionally, racial profiling by law enforcement may encourage private
organizations or citizens to target Mexican citizens, as seen when
armed ranchers in Douglas, Arizona used unjustified force to arrest
Hispanic persons crossing their land.
Second, SB 1070 promotes negative, ill-conceived stereotypes about
"Mexican appearance." The statute gives untrained local officials
the authority to determine who fits "Mexican appearance" and who does
not. By sanctioning [pretextual] detainment and questioning of
Hispanics or Latin Americans perceived to be "illegal aliens", the bill
creates a social and political hotbed for further acts of
discrimination or rights abrogation, perpetuating the cycle of
For example, "[m]ost [persons of Mexican ancestry] are of dark
complexion with black hair . . . [b]ut many are blond, blue-eyed
and 'white', while others have red hair and hazel eyes."
Furthermore, when aligned with other drastic measures, such as the
recently enacted bill intended to ban the multicultural studies program
in the Tucson Unified School District, it becomes unavoidable to see
that Arizona's legislative efforts constitute a discriminatory
policy. SB 1070's discriminatory objective runs against the
fundamental rights of people living in the United States.
For the foregoing reasons, amicus curiae respectfully requests that this Court declare SB 1070 unconstitutional in its entirety.