Michael Dorf: Is Anti-Immigration Sentiment Anti-Latino?

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Helen Iris Torre attends the Latino In America held at Occidental College on October 15, 2015 in Los Angeles, California. Michael Dorf writes that if the GOP were to abandon Trumpism on immigration and actually support a path to citizenship, there is no reason to think that it could not dramatically increase its appeal to Latino voters, including new citizens. Tommaso Boddi/Getty

This article first appeared on the Dorf on Law site.

A recent episode of This American Life focuses on two precursors to the Trump era: the unlikely 2014 primary success of David Brat in unseating Eric Cantor; and the 1992 and 1996 presidential campaigns of Pat Buchanan.

Although Brat's run was not initially fueled by opposition to illegal immigration, that became its primary focus when GOP primary voters reacted more positively to that aspect of his platform than to any other.

Meanwhile, Buchanan was Trump before Trump (albeit without Trump's gaudy showmanship, profound ignorance and linguistic incompetence). The episode is worth a listen overall, but here I want to focus on one claim it highlights.

During the episode, Buchanan, right-wing radio talk show host Laura Ingraham, and others all express their opposition to a path to citizenship (or "amnesty" as they call it) in, among other ways, cold political terms. They oppose extending citizenship to undocumented immigrants because the new citizens will mostly vote for Democrats. Thus, it could be said, they're not anti-Latino; they're just pro-Republican.

As I shall explain, this defense fails. Anti-immigrant fervor is ethnocentric at its core.

To begin, let's assume for the sake of argument that the factual premise of the argument is true: that GOP immigration hardliners are simply trying to preserve their electoral power in the face of a demographic onslaught, not acting out of any deep-seated ethnocentric motives. Even so, that would not acquit them of the ethnocentrism charge.

We can gain some insight from voting rights law. Suppose that a Republican-controlled legislature wants to gerrymander in a way that maximizes GOP districts by "packing" Democrats into a small number of districts that are overwhelmingly Democratic (thus leaving fewer Democrats available in other districts) and "cracking" Democrats whose numbers in some other districts might be enough to elect a Democratic representative.

If the legislature uses aggregate data about how particular areas voted in prior elections, it will have engaged in political gerrymandering, but at least for now, it will have acted legally, because partisan gerrymandering is legal.

Suppose, however, that the GOP-controlled legislature doesn't have or doesn't use data about how areas voted in recent elections. Suppose instead it uses census data about race. This would be completely rational, given racially polarized voting patterns.

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So now let's assume that the legislature draws its lines so as to "pack" and "crack" African American voters. Its reason for doing so is not racial animosity. Rather, the legislators know that in their state (as in the country generally), African Americans are overwhelmingly Democratic voters.

Nonetheless, packing and cracking African American voters—even as a means of serving only partisan ends—would violate the Voting Rights Act and the Constitution. Why? Because using race as a proxy is generally illegal, even if it is being used as a proxy for an otherwise permissible end.

The impermissibility of proxies is obvious in other contexts. For example, women are more likely than men to graduate from college, but it would nonetheless be a clear violation of Title VII for an employer to hire women rather than men for a job requiring a college degree, even though the proxy has a positive statistical correlation.

When the law makes a criterion (like race or sex) presumptively illicit, that continues to be true even when it could be a statistically useful proxy.

Of course, the Voting Rights Act, the Fourteenth and Fifteenth Amendments, and Title VII do not apply to a decision by Congress whether to grant a path to citizenship to undocumented immigrants. No court would invalidate congressional failure to grant undocumented immigrants a path to citizenship, even if it could be definitively proven that the reason for that failure were Republicans' belief that Latinos would disproportionately be the beneficiaries and they would vote Democratic. Indeed, there would be no case for judicial intervention even if it could be proven that naked racism motivated the failure of Congress to act.

Yet that hardly acquits the likes of Buchanan and Ingraham in the court of public opinion. Our law disfavors the use of race or ethnicity as a proxy because of a moral principle. Even where the law does not supply a remedy, the moral principle persists. Thus, GOP politicians who say (or even who don't say but act on the hypothesis) that undocumented immigrants shouldn't be given citizenship because most are Latinos who would vote Democratic are voicing (or acting on) what we may fairly condemn as ethnic stereotyping.

Moreover, the whole line of reasoning rests on a false premise. The radio show characterized the GOP dilemma this way: If they follow the Trumpist path and crack down on undocumented immigrants, Republicans will lose Latino voters, who—even without any change in immigration policy—will become an increasing share of the electorate over time; but if they follow the post-2012 "autopsy" report and liberalize the Republican approach to undocumented immigrants, they will likewise undermine their political prospects because the new mostly Latino citizens will become Democrats.

In this view, Republicans are damned if they do and damned if they don't, but at least with Trumpism they can delay the day of reckoning a bit.

Yet that analysis is plainly flawed in assuming that there is some reason why Latinos are inevitably going to vote for Democrats. The premise of the autopsy report was that by changing its policy with respect to immigration, the GOP could shed its (deserved) image as anti-Latino.

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That premise could well be correct. Latinos are a very diverse segment of the U.S. population. There is disagreement over whether Latinos are, on average, more socially conservative than non-Latinos, but even if not, they are not especially likely to be more liberal.

Thus, if the GOP were to abandon Trumpism on immigration and actually support a path to citizenship, there is no reason to think that it could not dramatically increase its appeal to Latino voters, including new citizens.

Put differently, the political reasoning for a continued GOP hard line on immigration is circular. It goes: (1) Latino voters support Democrats (2) so we oppose changes to immigration policy that lead to more Latino voters. But opposition to changes to immigration policy is a big part of the reason that Latino voters don't support Republicans in greater numbers. Change (2) and (1) will change as well.

If political calculations about Latino voters do not provide a rational explanation for GOP politicians' turn towards a hard line on immigration, what does? The obvious answer—as illustrated in the David Brat storyline itself—is the preference set of Republican primary voters.

That then raises the question why these voters oppose a path to citizenship for undocumented immigrants. Here the main storyline is often described as economic— they are taking our jobs—and occasionally by reference to public safety— they're bringing drugs; they're bringing crime.

These concerns are factually ill-founded. Undocumented immigrants do not commit more crimes than anyone else and the effect of undocumented immigrants on the economy is subject to debate but at most marginal. Ah, one might respond, but if GOP voters believe that undocumented immigrants are responsible for their own economic misfortune and for crime, then GOP politicians who pander to those beliefs are acting indirectly on concerns about economics and crime, not on ethnic prejudice.

But that analysis also lets the Trumpist politicians off the hook too easily. There is a further question why GOP voters believe that undocumented immigrants cause economic hardship and crime. And a big part of the answer is surely this: Because GOP politicians—including many before Trump—encourage that belief.

By scapegoating undocumented immigrants, these politicians distract attention from the other policies they promote, many of which harm the very people most willing to believe the worst about undocumented immigrants.

So, whatever the ultimate motives of the Trumpist and fellow-traveling anti-immigration GOP politicians, their hard line on immigration cannot be separated from the "cultural" fears of Latino immigration that their scapegoating fosters.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

Michael Dorf: Is Anti-Immigration Sentiment Anti-Latino? | Opinion