Sunday, May 2, 2010
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Is Arizona’s New Immigration Law in Violation of the Constitution?
Our Reading of the Statute
It is not often a state law causes such a mainstream media and Hollywood outcry as the new Arizona immigration law, SB 1070, signed into law on Friday, April 23, by Governor Jan Brewer. Since then, the law has been continuously and stridently characterized by many on the left, and some on the right, as being racist because in their view, it invites racial profiling. It does so, they say, because it allows any government official to single out anyone on the basis of perceived race for questioning of their legal status in this country. The law’s defenders, though outnumbered, have not been absent from the pundit shows with a debate forum format, and have vigorously argued that the law merely codifies into state law what was already federal law. They add that the law expressly forbids racial profiling. Without a strong ideological bent to guide, a casual observer, or even one paying close attention, might be forgiven for being unable to tell what the Arizona law actually does and does not do.
The truth as often (but not always) happens, is somewhere in between. Our reading of the actual statute, which stretches 8,700 words over 19 pages, finds that a reasonable person could find that racial profiling could result from the misapplication of this law. It also finds that the law does expressly forbid the use of race as the ‘sole’ criteria for the law to be invoked in order to ascertain someone’s legal right to be in this country. Finally, it is also true the law does not ‘create’ a new order of crime; it merely codifies state enforcement of what already is federal law, adding a state penalty for a federal law violation. And, yet, these are over-simplifications. Below follow the most pertinent excerpts of the law, with our assessments.
There Must Be ‘Lawful Contact” First
Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by adding article 8, to read:
ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS 11-1051. Cooperation and assistance in enforcement of immigration laws; indemnification
A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.
This part A is simple and clear. It says what it means, and is clearly all about enforcing federal law. Part B is where we get to the heart of the issue. We highlight here the text that is most relevant to the controversy.
B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR A LAW ENFORCEMENT AGENCY OF THIS STATE OR A LAW ENFORCEMENT OFFICIAL OR A LAW ENFORCEMENT AGENCY OF A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE 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, EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION. ANY PERSON WHO IS ARRESTED SHALL HAVE THE PERSON'S IMMIGRATION STATUS DETERMINED BEFORE THE PERSON IS RELEASED. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
Any lawful contact means that one does not need to be a subject of arrest prior to being asked to produce legal papers of identification. It could be in the course of a traffic stop. However, as noted further below, a driver’s license is considered sufficient proof because Arizona does not (knowingly) issue drivers’ licenses to illegal aliens. Therefore, under this scenario, this places no further burden on anyone that does not already exist. However, a lawful contact could also be something else, as in perhaps in being interviewed by a law enforcement officer regarding a crime in which the interviewee was a witness. Under this scenario, if the officer has “reasonable suspicion,” (which is itself defined by case law and not as ambiguous as it seems) a person without identification on their person, and unable to produce any, could find themselves detained for a few hours. What is the likelihood of this happening to a legal citizen, particularly one of Hispanic background? Small, but not zero. Chances are that almost every legal resident or citizen has their driver’s license on them, and the few that don’t have an acceptable form of identification at home. But, there may a few old Hispanic recluses somewhere that never kept any papers. Still, that they come in contact and under suspicion by an officer is unlikely – but again, not impossible. It should be noted, as many have already reminded us, that it is already federal law, as it is the law in most countries around the world, that all foreigners must keep their identification with them at all times. The only new thing here is that in Arizona someone might actually ask you for it, and some people asked will be citizens.
Race Is an Unavoidable Consideration
A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT SOLELY CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION.
Advocates of the law frequently say that the law explicitly says that race “may not be the sole consideration.” Actually, this is true “except to the extent permitted by the United States or Arizona Constitution [emphasis added].” So race may be a consideration – just not the only one in most cases. Race may be the sole criteria if the circumstance is believed to pass both the federal and state constitutional tests (admittedly, likely a hard test to meet). Thus, dark-skinned Hispanics may, under this law, legally come more frequently under suspicion.” Yet, this is only common sense. The overwhelming number of illegal aliens are of Hispanic descent, speak Spanish, and are of mestizo blend. As Dennis Miller said regarding the 9/11 hijackers: To note that they were all Arab Muslims is not racial profiling, it is “being minimally observant.” So it is here.
The last excerpt we include here is the list of acceptable identification for the purposes of this law, in addition to the usual proofs, such as birth certificates and passports. Thus, for example, a person need only present an Arizona driver’s license for the officer’s ‘suspicion’ to legally end.
A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:
1. A VALID ARIZONA DRIVER LICENSE.
2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.
3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.
4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.
Constitutionally Viable But Vulnerable
Is the law constitutional when it effectively limits itself to whatever the federal constitution allows? It’s hard to argue that it is not on its face. But we are not legal scholars – not that that matters that much since legal scholars differ amongst themselves as much as the rest of us – and a case might be made that the effect of the law, if not its explicit intent, will be unconstitutional. Another problem we see with the law is that is does potentially impose a burden of proof on a U.S. citizen, who could find himself detained, in the cases where no arrest was otherwise being made. Lastly, there is a question of federal “supremacy” issues, whereby some argue that a state cannot statutorily take on immigration matters. However, for what we understand, this area of the law is not fully settled in regards to the Arizona case.
As for the claims that the law is ‘criminalizing’ the act of being an undocumented alien on U.S. soil as several new commentators have casually stated, this is in no way true. The claim is bizarre on its face. Being an undocumented, that is an ‘illegal’ alien, was already illegal prior to the law.
There is a threshold that is
being crossed here. As Americans we have
not experienced – outside of our cars, that is – the reality of being subject
to proving our citizenship whenever we come into a formal contact with any law
enforcement officer. And yet, we are
ALWAYS in our cars. So, existentially, the
threshold being crossed is mostly symbolic.
Will it have some long-term consequence to the nature of our
republic? Again we return to our concern
of how long can someone be held who does not offer proof of legal status. At first pass, we did not see how, as a practical
matter, legal residents will be protected from unlawful seizure in those rare
cases we described above. Perhaps in the
court challenges that are on their way, this question will be addressed.
Is Arizona’s New Immigration Law in Violation of our Moral Standards?
Celebrity Outrage is All the Rage
One aspect of the Arizona immigration law controversy that we have found troubling is the frequency with which any supporter of the law is associated with racism or Nazism (so, what else is new?). News anchors of major networks and news coverage from major papers have given the impression that the law is widely viewed as racist and opposed, even as some more quietly admit that the law has received overwhelming support in Arizona, and across the country (see UPI Story). In fact, it is interesting that the support is so strong and deep, despite the negative media coverage. No less a luminary than Colombian citizen Shakira Mebarak Ripoll, also known as simply “Shakira” by her fans, enlightened the world with her official pronouncement that the law “is a violation of human and civil rights. It goes against all human dignity, against the principles of most Americans I know” (See AZ Central.com). She has been joined by many other great and wise celebrities who have also parlayed the fame they accumulated by singing sexy songs, dancing to sexy moves, telling jokes, and otherwise entertaining us with their illusions, into a podium from which they try to influence our national policy. If only these people, such as the one from Colombia, had shown this level of concern when dissidents in other countries were having their hands surgically removed, their colons pulled out their rectums, or were skinned and then burned alive. If only these people would be just half as indignant when women elsewhere are routinely stoned for choosing their own sexual partner, or for merely being sun-tanned. Would that they only be a quarter as annoyed as when homosexuals are routinely castrated before they are executed, or when children are recruited into armies by being forced to first to cut their family to pieces with machetes. But alas, no. The act of being asked to produce an ID is to them of the highest import, and “goes against all human dignity.”
No offense to Shakira Mebarak and other celebrities who do promote, sponsor and give loads of money to good causes (Ms. Mebarak Ripoll is active with educational efforts for the poor in Latin America, and for the child victims of Haiti). One nice perk of being a successful entertainer is the ability to give millions to the cause of your choice. It is nice to see that many do give from their plenty, even if it’s just a small fraction of what they have. But, being famous and rich does not make one wise or pertinent. It just gives you a louder voice. And we take exception to a foreign entertainer, who to our knowledge has never stepped out against the horrific injustices in her country, or any other country that we know of, castigating an American citizenry who is in desperation trying to tackle a serious problem she understands not at all.
There is a serious problem of a growing undocumented class of persons in this country. And, Americans are conflicted. Just as they support by large majorities asking people for proof of legal status, by smaller majorities they also worry that it could lead to civil right violations. That’s actually a healthy display of mature weariness and skepticism. Americans are frustrated that despite solid majorities of 70% in a poll after poll, decade after decade, with majorities cutting across all races, supporting more enforcement of immigration laws, little has been done. How is it that Washington found a way to pass the health care reform, even as polls showed most Americans against it, but not border control measures? As we noted in our previous issue of Feb 17, corporate interests are at the root of this impasse, and left-wing “no-borders” ideologues are their unwitting allies.*
*In This Week on ABC, George Will asked anti-Arizona law Al Sharpton what immigration enforcement did he support. He refused to answer. When Raul Hinojosa, Director of the University of California, Los Angeles (UCLA)’s North American Integration & Development Center (whatever that is) was arguing against the Arizona law, he was asked by Heather McDonald of the Manhattan Institute under what circumstances would he favor deporting an illegal alien. He refused to answer, even after repeated by prompting by Juan Williams, a moderate liberal who was guest-hosting the O’Reilly Factor show.
Aside from the questions that need to be addressed as to the application of this law when legal residents are detained, the law is in our view nowhere close to being any kind of human or civil rights violation. At worst, it will be an inconvenience at a time of an immigration crisis that has left Phoenix the kidnapping capital of the US – a development attributed to the growing presence of Mexican criminal drug gangs that recruit many illegal aliens into their ranks.