Wednesday, May 5, 2010

Arizona Ridin' Roughshod

Sometimes saying you're from Arizona can be tough.  Usually, saying so is only tough because you have to explain that the roads have pavement; you don't ride horses to work; not everyone wears cowboy hats; and you don't live amidst sand dunes.  However, none of those issues generally make national news.  In fact, very rarely does Arizona make national news.  But when Arizona does make national news it generally makes a big ugly splash, and then us Arizonans have questions to answer.

These last couple weeks have been no different.  On April 23, 2010 the esteemed Governor of Arizona, Jan Brewer, signed Senate Bill 1070 into law which will make it a crime for an alien to be anywhere in the state of Arizona without his "certificate of alien registration" or "alien registration receipt."  Furthermore, the law requires law enforcement officials to demand proof of legal residency from any person they “stop, detain or arrest” and about whom they have “reasonable suspicion” that “the person is an alien who is unlawfully present in the United States.”  (The "stop, detain, and arrest language" is a recent amendment; the original language of the bill read: "with whom they have made legal contact.")

SPLASH! Arizona finds itself on the front page of national newspapers and having negative national rallies held in its honor.  Not since Arizona refused to recognize Martin Luther King day has the spotlight shown so brightly on the 48th state.  So what does the passage of this law mean?

First it means we have a useless political inferno.  The law has quickly been boiled down to fit neatly into another nauseating dichotomous political debate.  The battle lines are drawn: 'This law promotes racial profiling!'  vs. 'This law only effectuates the rule of law!'  All the major players have weighed in:  The Rev. Al Sharpton, Glenn Beck, Glenn Beck's feigned dramatic pauses, Chris Mathews, Facebook groups, online petitions, off line petitions, major rallies, even the President of the United States chimed in (not so positively).  It's a grand play, and Arizona dutifully plays the role of racist antagonist. 

However, after wading through political posturing, the reality remains that Arizona has now created a law that rides roughshod over the Constitution; and regardless of its constitutionality, the law will have severe, negative consequences for citizens of Arizona. 

By making a law that affects immigration policy, Arizona has intruded on an area of the law traditionally reserved to the federal government. In so doing Arizona is walking dangerously close to its constitutional boundaries, and has arguably crossed a real constitutional boundary in an effort to protect a line drawn in the sand.

Immigration regulation is the province of the federal government, and the Constitution protects the superiority of federal law over state law.  That protection is important because immigration regulation necessarily involves relationships between the United States and other countries and should not be usurped by the state of Arizona.  Whatever the immigration policy of the United States, or how it be administered, that policy must be uniform in design and application.  The regulation of immigration implicates foreign policy, transnational commerce, respect for treaties, and concern for the treatment of U.S. citizens abroad--not to mention uniform rules for acquiring U.S. Citizenship.  Even if Arizona feels entitled to address these issues due to geographic proximity to Mexico, these issues are the responsibility of the federal government.

That said, this law is said only to mimic federal immigration laws, thereby avoiding preemption by federal law.  Failure to register in the United States, if required to do so, and failure to carry such registration or proof thereof is a misdemeanor under federal law.  8 U.S.C. 1306 (a) and 8 U.S.C. 1304 (e).  The Arizona law simply makes violations of those laws state crimes too.  SB 1070 lines 42-45.  Moreover, local police enforcement of criminal immigration violations is not new, and was even publicly approved in a 1996 Justice Department memo.  Since September 11th the government has quietly tried to allow local police enforcement of civil immigration violations too.  Therefore, there is at least an argument to be made that these particular sections of Arizona's new law only authorize an accepted practice of local police enforcement of criminal immigration violations.

Even if Arizona law enforcement officials are enforcing federal immigration laws, they are still prohibited from making determinations about who should or shouldn't be admitted to the country, because doing so amounts to immigration regulation, and immigration regulation is exclusively vested in the federal government.  However, it appears that is exactly what the new law is requiring Arizona law enforcement officials to do.

In 1994, California introduced Proposition 187.  Proposition 187 sought to deny illegal immigrants access to social services, health care, and public education.  The major tenets of Proposition 187 required state agencies (including law enforcement) to, among other things, verify the immigration status of people they came in contact with; notify individuals of their immigration status; and report those individuals to federal authorities.  However, in LULAC v. Wilson, a federal district court found the measure unconstitutional because the "verification, notification and cooperation/reporting requirements... directly regulated immigration" thereby creating a "comprehensive scheme to detect and report the presence and effect the removal" of undocumented immigrants. 

Arizona's new law is eerily similar to Proposition 187, and seems to regulate immigration as well.  Several sections of the bill require Arizona law enforcement officials to make determinations about who should or shouldn't be admitted to the country; especially those sections that have created the racial profiling fracas.  For example Article 8 part B will read:
"...[W]here reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, the person's immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c)."
 Furthermore, Article 8 part E will read:
 "A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States."
Other parts of the law further demonstrate that the law intends for Arizona to regulate immigration.  For example, the law will: allow state and local law enforcement officials to transport aliens unlawfully present in the state to federal facilities; prevent the prohibition on any agency of the state, county or cities from maintaining immigration records; and allow citizens to sue state agencies for a failure to enforce federal immigration laws.

In short, the law as a whole imposes a comprehensive scheme to detect and remove undocumented immigrants just like Proposition 187.  Therefore, the constitutionality of the law should be called into serious question. However, even if the law does not venture into federal territory, there is no question the law begets racial profiling--no matter what any person, preamble, clause, talking head, or politician says.

The section of the law that has compelled thousands across the country to march against the bill, will allow any law enforcement official to demand that any individual, whom they have "stopped, arrested or detained,"  produce proof of their immigration status if that law enforcement official has "reasonable suspicion" to believe that "the person is an alien who is unlawfully present in the United States."

So, what gives a law enforcement official reasonable suspicion that someone is an illegal immigrant?  That is the million dollar question.  After all, Governor Jan Brewer herself said she "does not know what an illegal immigrant looks like."  However, we can assume that not everyone is as color blind as Gov. Brewer, and we can be certain that many people (including law enforcement officials) imagine someone of Latin dissent when they imagine an illegal immigrant. No one can rationally claim that this law will not have a disproportionate impact on United States Citizens of Latin dissent.

To be fair, the legislature has amended the law to specify that when deciding whom to question about immigration status, police may not use race, ethnicity or national origin as a factor.  However, this amendment is clearly inserted by lawmakers to make a case that the law does not have any discriminatory purpose.  Unfortunately, avoiding discriminatory purpose is enough to avoid a constitutional challenge--at least an "Equal Protection" challenge. (The Equal Protection Clause is the last clause of  Section 1 of the XIV Amendment and prohibits discrimination by state government institutions.)

The Supreme Court has held that "official action will not be held  unconstitutional solely because it results in a racially disproportionate impact."  Although a showing of "disproportionate impact is not irrelevant... it is not the sole touchstone of an invidious racial discrimination," but discriminatory intent need not be the sole reason for passage of a law or other government action to declare that government action unconstitutional.  That said, proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.  See Arlington Heights v. Metropolitan Housing Corp. and Washington v. Davis

However, evidence that a law has a disproportionate impact on a particular class of persons--like Mexican Americans for example--may be used with other empirical evidence to demonstrate that the law has a discriminatory intent or purpose.  Therefore, inserting an empty promise that race will not be a factor in determining who to question about immigration status will not, on its own, save the law from an Equal Protection challenge.

On the other hand, Arizona has a compelling interest to do something to combat illegal immigration.  More humans and drugs cross the United States border in Arizona than anywhere else in the country.  The state is ill equipped to deal with the challenges that type of traffic creates, and ends up footing a significant bill for it.  The bill is very expensive.  Not only is the expense felt in lost tax revenue, but it is felt by those exposed to the violence created by the business of crossing the border with and without drugs.  Not to mention the countless people who die trying to cross the border daily.  The motivations to address all these concerns can easily be seen as free of discriminatory intent, and would certainly be valid pieces of an equal protection defense.

However, regardless of the constitutionality of this bill, the means by which Arizona has chosen to address these valid concerns is completely inappropriate.  Not only for the reasons already mentioned, but because the law simply invades the civil liberties our citizenship provides.

For starters, recall that the law makes existing in Arizona without proper documentation of your immigration status a crime.  An officer may stop anyone on the street if they have a "reasonable articulable suspicion" that a "crime is afoot."  Therefore, an officer need only have some "reasonable articulable suspicion" that an individual is an illegal immigrant, or simply does not have their immigration papers, and that officer may now stop that individual and demand the individual show proof of their immigration status.  Who knows what that "reasonable articulable suspicion" will be, but it is not an extremely demanding standard.  Moreover, if you honestly believe a police officer in Arizona--a state that shares a border with Mexico--will have reasonable suspicion to believe anyone other than persons of Latin dissent are illegally present in Arizona I have one thing to say to you:  "Hi, I'm earth, have we met?"

Consider also the impact on Arizona motorists this law will have.  Police officers may stop a vehicle for far more than just speeding.  Vehicles may be stopped for a busted headlight; a busted taillight; an improperly secured or displayed license plate; faulty windshield wipers; forgetting to turn your headlights on at dusk; failure to signal before changing lanes; failure to signal one-hundred feet before an intersection; accelerating too quickly through an intersection; slowing or retarding traffic; and countless other minor violations.  The point is, most officers can follow almost any suspicious vehicle until the vehicle violates some minor traffic regulation.  In fact, that is exactly the pretext for many DUI and drug stops.

However, when you're driving with a broken taillight an officer may not stop you and then investigate you for DUI.  To do so, he must have independent probable cause to believe you are driving under the influence, like smelling alcohol or seeing an open container in the car when approaching the vehicle.  However, unlike a DUI, this law only requires an officer to have the much lower standard of reasonable suspicion to investigate the immigration status of an individual.  If you think an officer, after stopping a car for a broken taillight, will have reasonable suspicion to believe the white driver of that car is an illegal immigrant I encourage you to double check that thought with reality.

There are those that say there is nothing to worry about unless you're an illegal immigrant.  There are others who say that you will still have a chance to prove your immigration status in court.  However, that type of thought ignores our basic civil liberties and undermines our justice system.  We have rights that protect us from abuse of power by the government and its agents.  Fundamental to that idea is the guarantee that we are innocent until proven guilty.  However, this law turns that idea on its head and demands United States Citizens instead prove their innocence to government agents.

Sometimes saying you're from Arizona can be tough--especially when Arizona makes the national news.  Over the years you realize it's often tough because you know that the political, social, and ethnic landscape of the state is more complicated than most people realize.  You understand there were interest groups and lobbyists on both sides this bill with very real, and very legitimate concerns.  You realize too that there were prominent voices involved in the creation of this law who have views and principles that abhor you.  You even come to find out that some of those people have done other things for the state you appreciate very much.

However, in the end, you hope that this unfortunate law will show more people how complicated and desperate the environment at the Arizona-Mexico border is. You hope that people will realize that even creating a police state in Arizona will do nothing to affect the economic and violent pressure that forces Mexican Citizens into our country every year.  Finally, you hope the federal government will address the failings of our country's immigration policy so that Arizona will no longer have the need, or the chance, to enact legislation that offends the Constitution and threatens basic rights of United States Citizens.