Friday, April 20, 2018
Guest blogger: Norah Cunningham, law student, University of San Francisco
“Hands-on-the-Hips” Arguments: Replacing Legal Reasoning with an Underlying Rhetoric of Fear and Criminalization
In my Legal Research, Writing and Analysis class, my professor cautioned my class of fresh-faced 1Ls against using “hands-on-the-hips” arguments— “arguments” where the law is stated, facts are presented, and the writer puts her hands on her hips and, without connecting those facts to the law, makes a conclusory statement to the effect of: “Therefore, I am obviously correct.” The writer expects the reader to automatically see the connection and agree with her because, in her mind, her conclusion is the only logical one. While this notion of connecting facts to law in order to make a conclusion was a wild concept to those of us just stepping our toes into the world of legal analysis, it appears that this concept is just as baffling to certain judges and Board of Immigration (BIA) officials. In the forum of immigration cases, rather than reasoned legal analysis, an unspoken rhetoric of fear and criminalization often takes center stage, and courts assume that the reader will fill in the gaps of their conclusions with common assumptions about undocumented immigrants.
Two specific United States Supreme Court cases are riddled with these “hands-on-the-hips” arguments: United States v. Brignoni-Ponce and United States v. Martinez-Fuerte. Both cases attempted to balance the importance of the public’s interest and the protections of the Fourth Amendment when analyzing whether stopping and questioning the occupants of vehicles about their residency without a reasonable basis is constitutional. The cases cited statistics on how many undocumented immigrants enter the country, how many are stopped in vehicles and apprehended by border patrol officers, how many cars cross through checkpoints, etc. The majority opinions then made leaps and conclude that, because of the high number of undocumented people in the country, it is within the public’s best and necessary interest to apprehend these undocumented people through means that may or may not be constitutional.
The Court in Brignoni-Ponce did conclude that the traffic stop in that case was unreasonable and therefore unconstitutional because the officers relied solely on the appearance of Mexican ancestry; however, the Court still concluded that “the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” This nod to allowing discrimination based on the appearance of nationality was rationalized by a need to serve the public’s interest. And yet, there was no information provided as to how exactly the public was being harmed by the presence of undocumented immigrants apart from one sentence containing the judge's flawed personal beliefs: "Whatever the number, these aliens create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services." Aside from these notions being completely false, even these reasons for the public’s interest being a priority were unsupported by any reference apart from the judge’s personal belief. After stating the law that Fourth Amendment rights can be balanced against public interest and listing facts including the estimated number of undocumented people in the country, the Court essentially put its hands on its hips, leaned back and said, therefore, public interest dictates that racial profiling can be one factor for pulling over people and questioning them about their documentation.
The Court in Martinez-Fuerte did not even include a few unsupported sentences explaining why the presence of undocumented immigrants is a detriment to society, but nonetheless concluded that the public’s interest outweighed the constitutional rights of the individual, and secondary stops in checkpoints near the border that are largely based on apparent Mexican ancestry are reasonable: "[E]ven if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation." The Court again listed statistics of successful apprehensions at the checkpoint and threw out big figures regarding the number of undocumented immigrants who enter the United States, then put its hands on its hips and assumed that the reader would connect these numbers to the conclusion that public interest requires, and even makes it necessary, for Border Patrol officers to have broad discretion when bringing cars into secondary checkpoints. “[T]he need to make routine checkpoint stops is great,” the Court claimed, without showing exactly why this need is great enough to make the Fourth Amendment interests “quite limited” in comparison.
Both Court opinions reflect the common rhetoric that automatically associates the notion of undocumented immigrants with crime. The rhetoric is so understood, the Court did not even feel compelled to say it. There is a high number of undocumented immigrants in the country; therefore, it is within the public’s best interest to apprehend them, even if apprehension is largely based on racial profiling. There is a missing piece in the reasoning, and it is the assumption that immigrants are a detriment to the public's interest. This rhetoric is not isolated to right-leaning news outlets or political platforms; it infiltrates judicial decisions and creates harmful precedent that prioritizes an un-cited public interest over undocumented people’s individual constitutional rights.
 Professor Carol Wilson
 United States v. Brignoni-Ponce, 42 U.S. 873 (1975).
 United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
 Brignoni-Ponce, 42 U.S. 873 at 886-87.
 Id. at 878-79.
 Immigrants typically do not compete for jobs with native-born workers; immigrants create jobs as entrepreneurs, consumers, and taxpayers; and undocumented immigrants are not eligible for Federal benefits programs. See https://www.uschamber.com/sites/default/files/documents/files/022851_mythsfacts_2016_report_final.pdf
 Martinez-Fuerte, 428 U.S. 543 at 563.
 Id. at 557.