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.