Arizona’s immigration law is constitutionally troubling

Arizona’s new immigration enforcement law, just days old, already is sparking challenges and extensive controversy.  Most Republicans, including many self-proclaimed “conservatives” who might otherwise oppose expanding government police powers, have lined up squarely behind this measure.  This is mystifying.

The law is fundamentally at odds with principles of federalism designed to reflect proper spheres of authority as between state and federal governments.  It also is in conflict with traditional notions that the police are not permitted to stop and detain individuals based on mere suspicion.

Many supporters of this measure appear to have concluded that, since the federal government has not been sufficiently vigorous or consistent in its enforcement of federal laws against illegal immigration, it is perfectly permissible for the states to step up to the plate and take on this responsibility.  Interestingly, this argument has rarely, if ever, been employed to justify states stepping into federal law enforcement shoes in any context other than immigration. 

Protecting our borders is in fact a singularly federal function; reflecting the fundamental responsibility of the national government to protect our sovereignty.  Traditionally, and appropriately, states have not been permitted to assume federal government functions; just as Washington should not be permitted to assert powers properly left to the states.  This split of enforcement authority – while in modern times often not honored by the federal government – is codified in the Constitution, including in the Tenth Amendment.

There are any number of federal laws and responsibilities that do not receive the attention many citizens and state governments believe they should; but this is hardly reason to jettison constitutionally-sound principles of federalism, and open the floodgates to states assuming federal functions. 

The vast and virtually unfettered power the new Arizona law grants local law enforcement to stop, question and detain individuals to determine if they are in the country lawfully, is even more troubling.  But here also, many citizens, state legislators, commentators, and of course, members of Congress, appear far too ready to grant police this broad power simply because it purports to address the problem of illegal immigration.

While a number of Republican supporters of the Arizona law claim that its provisions would come into play only after a police officer had lawfully stopped an individual for another offense, the clear language of the law says otherwise.  Under it, an officer need only have “lawful contact” with a person – which can be something as innocuous as passing them on the sidewalk – to provide the officer the justification to demand the person produce papers establishing their lawful status in the United States.  The only predicate then required, is that the officer have a “reasonable suspicion” the person is an unlawful alien – based on what, the statute does not say.

The new law includes many other provisions troubling because of their vagueness and breadth.  For example, a person is subject to arrest without a warrant if an officer has probable cause to believe the person has committed an offense that makes them “removable from the United States.” Determining exactly which offenses make someone “removable” is hardly an exact science.  But, insofar as being in the country unlawfully subjects one to “removal,” this provision in the law becomes completely circular.

Hopefully, the federal courts will quickly avail themselves of the opportunity to determine the constitutionality of this Arizona law.  And hopefully, they will find its exceptionally broad grant of police detention powers to be unconstitutional.  If not, it won’t be long before the same powers are sought and applied to other areas in which police agencies want to enhance their ability to detain and question individuals.  Once released, this genie will not easily be returned to the bottle

252 comments Add your comment

Curious Observer

May 3rd, 2010
10:35 am

Forget about rounding up and deporting illegals. It is such a massive task that no entity could undertake it. Besides, the revolving door would merely turn again.

Tackle the problem at its source—employment. Why do illegals come here? Employment. Why do they stay here? Employment.

Enforce the existing law by targetting those who employ illegals, including homeowners who slip an illegal a twenty for a yard-mowing job. Make employing an illegal so horrendously expensive and consequential that no one will do it. Help enforce employment law by creating a national database of eligible workers. The problem will solve itself. Illegals, no longer able to obtain jobs, will return to their countries of origin. A bonus will be numerous job openings for legal workers and better enforcement of the minimum wage jobs.

And why hasn’t the U.S. cracked down already? The answer is obvious. Those who benefit from illegal labor are also among the most generous donors to political campaigns.

Danielle

May 3rd, 2010
10:38 am

mmmm, if you are going to post the word illegal repeatedly, please learn how to spell it..

And I do think the quote is appropriate. I am not an illegal. I am American and my constitutional rights shall not be dismissed just because there is an immigration problem. If the United States cannot fix the immigration problem without profiling certain ethnic groups, then illegal immigration is the least of our concerns.

Another issue, Hispanics make up a large number of Republican voters in Florida and Texas, especially. I wonder if this new ‘papers law’ will make them vote Left. I am glad our Governor, Rick Perry has already said this law would not be good for Texas.

scrappy

May 3rd, 2010
10:40 am

“I agree, and I really don’t want to see it come to that. But Arizona is on the verge of marshall law in the face of the onslaught. Someone somewhere has to take action, and if “showing my ID” is part of the cure, I’m first in line.

In every medicine there’s a little poison.”

This is why I said it is a slippery slope… First we say it is ok for the cops to ask for ID without probable cause. Then when that stops working, we agree that it is ok for cops to search houses looking for illegals without probable cause…. Then when that stops working we say it is ok to set up road/sidewalk blocks allowing cops to stop every person who comes by and check their status. Where does it end?

I also find it a little ironic that my above rationale is the same rationale used by the NRA when they defend the 2nd amendment. I personally don’t think hunters need full metal jacket automatics, but I do see their point about give a little, give a mile. Also guessing a lot of the same NRA folks are completely for this AZ law, not realizing the similarities.

Not Going To Use My Usual Name

May 3rd, 2010
10:41 am

1) Right-wing radio talk show hosts speak in wide extremes and false dichotomies, training their listeners to do the same. Thus we are met with “if you aren’t with us, you’re against us” talk, like “if you don’t support this law, you must be for illegal immigration.” Wrong. One can see it as the problem it is without finding this *method* of dealing with it to be anything but the first step to an apartheid-like fascism.

2) Prosecute–and FINE–the heck out of anyone who employs an illegal immigrant. Sure, if there’s an illegal immigrant who commits a violent crime (and most of them don’t, any more than most people don’t), then punish and deport. But put the heat on the ones who hire. It’s like prostitution: you get much better results when you embarrass/fine/prosecute the johns than you do when you prosecute the prostitutes. As a bonus, you’re hurting the exploiter more than the exploitee, which satisfies the moral queasiness of stepping on the already-downtrodden.

Martin C

May 3rd, 2010
10:42 am

I live in Phoenix, and the truth is that our current state Govt’ has done nothing to secure the border, Brewer has the option of sending in the National Guard, but has’nt done it, why? Pierce,Brewer and Arpio seem to think that you can secure the border from Maricopa Co, The only reason this bill was passed is purely for political gain, evidently it has nothing to do with securing the border.

George

May 3rd, 2010
10:48 am

If a not too tolerant Bob Barr is saying this law is unconstitutional, this law must be just that! I do not know whether folks who support this law are racist, but after reading Bob Barr’s piece, I am convinced that they want to resurrect the Former Soviet Union…they are a bunch of commie pinkos and dont even know about it! Arizona is a Red State..no doubt about it..communist Red..Arizona Soviet Socialist Republic (ASSR).

A.R. Torres Jr.

May 3rd, 2010
10:55 am

American sovereignty should not be taken for granted. All that I’m hearing about is that “illegals” and their advocates have been protesting vehemently, but what have the American citizens have to say about this too. I haven’t heard the citizens of this country speak out for themselves yet. I’d rather hear from them since they are of the majority and they know best what is good for their own COUNTRY better than advocates from foreign countries, i.e. Mexico, and other latin American countries. If the citizens of this nation held its rally to fight for their sovereignty, then I shall listen and weigh in my opinion with both sides of the spectrum. That’s the only way I know how to best deal with this new law.

George

May 3rd, 2010
10:59 am

“I now want to be a police officer. Maybe i will move to Arizona!!!!”

Even better why dont you pack up and move to China and North Korea. Your ideas will fit well there!

LibraryJim

May 3rd, 2010
11:10 am

George, spoken like a true liberal: “If you can’t argue with fact, blind them with insults!”

Pretty simple...

May 3rd, 2010
11:11 am

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No More Progressives!

May 3rd, 2010
11:12 am

Chelsea

May 3rd, 2010
10:19 am
Let’s call the law what is really is…complete and utter racism.

Liberal spin 101. If you’re a card carrying fellow traveler, everything is racism, even though she can’t define the word.

Danielle

May 3rd, 2010
11:20 am

Interesting how when you disagree with your own party you are called ‘illegal’. Since when are the conservatives the party that name calls like children?

I suppose Marco Rubio, Connie Mack, Jeb Bush, Rick Perry are illegals as well.

Jefferson

May 3rd, 2010
11:22 am

Those folks in AZ are just making it hard on themselves.

No More Progressives!

May 3rd, 2010
11:33 am

scrappy

May 3rd, 2010
10:40 am
This is why I said it is a slippery slope…

Again, I’m in total agreement with you. It’s not the America I knew growing up. But I just cannot justify standing idly by while hoardes of “undocumented workers” run roughshod over our great Nation.

Ever been overseas? What happens every time you cross a border? “Show us you passport, please.”

Don

May 3rd, 2010
11:35 am

I think Bob has it exactly right. Let’s say you are attending a Tea Party and the local police have decided they don’t like it because they fear that the push to reduce taxes would reduce their ranks and pay. They may be totally wrong in this belief, but that really doesn’t matter. They can decide that YOU are in need of having your papers checked for being a possible illegal alien and haul YOU in to have your residency status checked. The one thing we can count on is that whatever power we give to the government, they will find a way to misuse and abuse it. Freedoms handed over are really hard to win back.

No More Progressives!

May 3rd, 2010
11:37 am

Danielle

May 3rd, 2010
11:20 am

I suppose Marco Rubio, Connie Mack, Jeb Bush, Rick Perry are illegals as well.

Did this post make any sense to anybody?

Pretty simple...

May 3rd, 2010
11:37 am

“Since when are the conservatives the party that name calls like children?”

mmm…I guess you never listen to Rush Limbaugh, Sean Hannity, Glenn Beck or Ann Coulter.

Danielle

May 3rd, 2010
11:40 am

No More Progressive, Oversees they don’t require their citizens to ’show me your papers’

Unless your thinking of communism.

Danielle

May 3rd, 2010
11:49 am

In Texas I am only required to have my driver’s license on me when I am driving. That actually makes a lot of sense.
I almost never drive, am usually a passenger, and rarely carry ID. What happens when my white husband is stopped for speeding. Do they look at my skin color and decide to ask for my papers?

scrappy

May 3rd, 2010
11:50 am

Yes, I’ve been overseas, and usually only when you cross a boarder do you have to show your papers. But, when in China, we were stopped and questioned often, not allowed to certain areas and forbidden from certain states. Is this what Arizona will turn into? Showing your passport at the State line? Being afraid of being stopped and questioned by the machine-gun-toting armed police force? Looking a lot like China, yes?

If you don’t want to sit idle, get out there and force politicians and businesses to step up. Stop hiring them, reduce the demand.

David C.

May 3rd, 2010
12:00 pm

So let’s get this straight … American farmers, small business owners and even the government hire illegals and exploit them, yet only the workers are punished? Immigration is not a problem because Mexicans are evil and hate America, its not a problem because we have an “insecure border”, it’s a problem because Americans hire illegals! If there was no work, there would be no immigration.
The companies who hire and exploit these workers get away with paying employees slave labor and they go unpunished. Even if they’re fined, they still come out making giant profits. Why isn’t this an issue? If we started hiring Canadians for higher wages than they make in Canada, we would have a Canadian immigration problem. They have an “insecure border” as well. Bottom line, stop blaming Mexicans. We need to look at ourselves, however, I am afraid we are too naive to actually think we are responsible for the problem. It has to be someone else’s fault right? It’s the American companies who exploit workers that causes this problem– face it.

Danielle

May 3rd, 2010
12:01 pm

I have only voted conservative. As a Christian my main issue was always against abortion. However, if the conservative party cannot care about it’s Hispanic Americans then i cannot believe they truly care about any life.

Republicans are digging their own grave.

No More Progressives!

May 3rd, 2010
12:05 pm

Danielle

May 3rd, 2010
11:49 am
What happens when my white husband is stopped for speeding. Do they look at my skin color and decide to ask for my papers?

Only if there is sufficient probable cause.

Danielle

May 3rd, 2010
12:06 pm

David C., correct illegals keep coming to the US because people will still hire them. There are laws on the books where company’s can be fined up to 10K per illegal worker.
New laws are rarely the answer. We need to enforce the laws we already have.

mit

May 3rd, 2010
12:06 pm

what made you think republicans cared about abortion? They got Danielle hook, line, and sinker.

Danielle

May 3rd, 2010
12:09 pm

no more progressive,

so what would be probable cause? If my husband is ticketed for speeding and I am a passenger does the police officer look at my skin color and decides if i’m brown enough to be questioned?

What does an illegal immigrant look like?

David C.

May 3rd, 2010
12:10 pm

Danielle,
The focus should not be on illegals, it needs to be on American companies. No matter what you do, any self-respecting man with love for his family will do whatever he has to in order to feed his family. Look at the Berlin Wall and their secure border. How well did that work? 10k per illegal immigrant is still not a lot of money when you consider how low their wages are. These companies can still profit. Laws enforced on companies will be faaar more effective than laws placed on workers. If we are going to get upset with anyone, it needs to be companies who exploit workers, not the workers themselves.

mit

May 3rd, 2010
12:11 pm

nmp, Only if there is sufficient probable cause.> i.e. they are brown.
this bill will do nothing for securing the border. I thought you tea baggers were for less govt. control anyway? Now, they are for more, just don’t charge me for it.

Danielle

May 3rd, 2010
12:17 pm

Mit, I agree. Politicians use certain issues to gain voters.
Most my husbands family are Evangelical Christians. But they are all white so this isn’t really effecting them much. My husband on the other hand has questioned if we’re turning into liberals. I don’t think so. I think the Republicans are going against what the conservative party should stand for. Not limiting the freedoms of it’s citizens. Less government not more intrusion.

You Distort/We Deride

May 3rd, 2010
12:19 pm

Bob, you write above the heads of your audience. You propound constitutional law edicts which contradict what conservatives want to hear, though your rationale is sound.

I, for one, would wish that the federal government would simply enforce its own laws relative to border patrol and immigration. The peoples’ remedy, however, is not state seizure of federal obligations, but rather electing federal officials to simply do their jobs.

GoodScout

May 3rd, 2010
12:20 pm

Bob, how dare you challenge the dicta of the Brownshirts! We come for the Mexicans, now, and since you’re not a Mexican you shouldn’t speak up. Next we’ll be rounding up other minorities, but since you’re not one of them, stay quiet. We’ll let you know when the GOP, er, Brownshirts will be coming for you!

Jay

May 3rd, 2010
12:20 pm

These enforcement only efforts are so short-sided, we have been doing that for the past 25 years and the situation has not changed. Unless we reform the immigration system which it does not work the problems at the border will continue. Immigrants do of want to come here illegally but the current system does not allow them to come here legally and as long as a low paying job in america pays 10X better than one in their country the will continue to come however they can… The violence at the border is part of another success of ours the war on drugs, as long as we are the No,! consumer and our dollars then are used to buy guns in the US that turn out all over Mexico in the hands of drug lords well the violence is just going to filter to this side. If we take immigrants out of the equation then the only people trying to cross illegally will be drug dealers and gun runners. In the mean time they will hide amongst immigrants and we will be as successful in this effort as we are in the war on drugs, more enforcement has not done the job on either issue, why are we expecting a different result.

scrappy

May 3rd, 2010
12:23 pm

Danielle – I have to say it, but hope it doesn’t lead the blog astray –

Do you realize the ironic hypocrisy of your posts? I vote conservative because of abortion, but the Republican party should be about less government and intrusion and not limit the freedom of it citizens?

George

May 3rd, 2010
12:27 pm

“George, spoken like a true liberal: “If you can’t argue with fact, blind them with insults!””

If I speak like a true liberal, you and your so-called conservative friends here speak like true commie pinkos.

Danielle

May 3rd, 2010
12:28 pm

Scrappy, I believe an unborn child is a human being w/ a beating heart.

So no i do not see the hypocrisy.

George

May 3rd, 2010
12:30 pm

“But, when in China, we were stopped and questioned often, not allowed to certain areas and forbidden from certain states. Is this what Arizona will turn into? Showing your passport at the State line? Being afraid of being stopped and questioned by the machine-gun-toting armed police force? Looking a lot like China, yes?’

Yes, that is why they are a Red State, with Pearce being the chief of politburo..Soviet style commie pinkos and they have the gall to call Obama a Socialist, when they are the biggest commies.

jconservative

May 3rd, 2010
12:33 pm

“If you come back identified as an illegal, then you get deported.”

Incorrect. If local law enforcement finds someone who may be illegal they turn them over to ICE.

This is the big fallacy in the Arizona law, local police have their hands tied by Federal law. The State of Arizona is not going to “deport” anyone. Pima County is not going to “deport” anyone. This law is just for show.

And Arizona taxpayers are not going to allow the local taxpayer funded jails to be filled with illegals at $20 to $30 dollars a head per day.
Arizona, like most States, is broke. You either raise taxes or decide not lock up illegals. Most cities and counties decided a long time ago not to lock up illegals. They turn them over to ICE and forget about them.

DawgDad

May 3rd, 2010
12:33 pm

Some of the posts here are really perplexing. Since when does passage of a law, any law, have ANYTHING to do with ENFORCING the law? The problem here is that the federal government is not enforcing EXISTING laws. So let’s pass more laws? Give me a break.

I do not in ANY way see this as a racial profiling issue, and quite frankly any attempt to cast it that way immediately discredits the person casting those dispersions as a race-baiter.

We have experience with the effects of past amnesty bills. Not a good idea. We also now have a serious problem with the open border to our south as it is a conduit for illegal workers, illegal squatters, and hard criminals. Giving these people amnesty is a travesty and a sellout of our national security and identity. Let them come through the established legal channels or send them packing.

The labor racketeering in high business and government halls has got to stop and stop now.

George

May 3rd, 2010
12:34 pm

“Scrappy, I believe an unborn child is a human being w/ a beating heart.”

The real hypocrits are people like Nathan Deal who want to speak from both sides of their mouths on these issues.

George

May 3rd, 2010
12:35 pm

Everyone talks about enforcing the law? I live in a big city. Do they enforce traffic laws? Do drivers obey the traffic laws? Do pedestrians not Jaywalk? Where is the police when we need them?

scrappy

May 3rd, 2010
12:38 pm

A more honest post would have been – I note the hypocrisy but choose to ignore that because these are my beliefs.

No More Progressives!

May 3rd, 2010
12:40 pm

Danielle

May 3rd, 2010
12:09 pm
no more progressive,

so what would be probable cause? If my husband is ticketed for speeding and I am a passenger does the police officer look at my skin color and decides if i’m brown enough to be questioned?

What does an illegal immigrant look like?

Proable cause is a legal term that stems from the 5th Amendment: “Its guarantees stem from English common law which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase “due process” both trace their origin to the Magna Carta.”

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

Go hire a lawyer. And for all I know, you look like an “undocumented worker.”

Danielle

May 3rd, 2010
12:45 pm

Scrappy 4 years ago I was pregnant. I had already been to my dr. for 3 visits and had seen my baby on ultrasound. I saw the heart beating. At 12 weeks I had complications and had to see my dr. where on that ultrasound the heart was no longer beating. After a D&C we had that child buried.

To you that may have been just a mass of tissue. But not to me. I still see no hypocrisy.

scrappy

May 3rd, 2010
12:52 pm

I’ve had similar issues complete with D&C and it is sad, but that does not mean that I profess to know what each woman should do and I certainly don’t want legislators preaching to me/any woman either.
Sad stories aside, being for a group that is supposed to want less government but then takes away rights of women – is hypocrisy. That is all I will say – back to immigration.

Danielle

May 3rd, 2010
12:55 pm

Again scrappy, maybe i’m a little too conservative. But what about the rights of men. I mean a woman can have an abortion.. but if she chooses to keep the child the you bet he better pay up.

Dan

May 3rd, 2010
12:56 pm

Most immigrants I know, are ticked off that many are here illegally after they worked their butts off to go through the process and become legal immigrants. As for the illegals complaing, it is 100% a politcal complaint they know the louder they squawk the less likely the enforcement agencies will be to send them back, as for the actual questioning, I am sure they find it laughable as they were most certainly subject to far worse governmental intrusions in their own country

No More Progressives!

May 3rd, 2010
12:58 pm

Danielle

May 3rd, 2010
11:40 am
No More Progressive, Oversees they don’t require their citizens to ’show me your papers’

“Illegal” immagrants, by whatever name you call them, are illegal, therefore, not citizens.

What is so frickin’ hard to understand here?

Danielle

May 3rd, 2010
1:01 pm

What is hard to understand is why so many people think that US citizens will not be effected by this law. Not just ‘illegals’ will be asked for their papers.

Jay

May 3rd, 2010
1:13 pm

These enforcement only efforts are so short-sided, we have been doing that for the past 25 years and the situation has not changed. Unless we reform the immigration system which it does not work the problems at the border will continue. Immigrants do of want to come here illegally but the current system does not allow them to come here legally and as long as a low paying job in america pays 10X better than one in their country the will continue to come however they can… The violence at the border is part of another success of ours the war on drugs, as long as we are the No,! consumer and our dollars then are used to buy guns in the US that turn out all over Mexico in the hands of drug lords well the violence is just going to filter to this side. If we take immigrants out of the equation then the only people trying to cross illegally will be drug dealers and gun runners. In the mean time they will hide amongst immigrants and we will be as successful in this effort as we are in the war on drugs, more enforcement has not done the job on either issue, why are we expecting a different result.

Danielle

May 3rd, 2010
1:14 pm