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Index of the Weekly Forecast & Review
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.
