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

Luis V.

September 20th, 2010
10:15 pm

The problem with this law does not lie within the police’s ability to check for documents proving legal citizenship or right to be in the country. The problem does not lie in Arizona wanting to protect its borders and its citizens. Arizona has every right to protect its borders and keep illegal immigrants out of the country. The problem comes in when police officers are given the power to check for these legal documents by simply having, “lawful contact” with a person. Police officers should not be given that right. This opens the doors to all sorts of stereotypes. How can a police officer tell if a person is legal or illegal? They cannot do so by simply looking at a person. How do we know that a police officer won’t be driving around simply looking for someone to commit the smallest crime just to give them a ticket and check their citizenship status? We can’t preven these biases from occuring. If Arizona is concerned about illegal immigrants within the state then they should conduct a check for citizenship to all its citizens regardless of race, ethnicity, and skin color instead of opening up the possibility for police officers to racially profile a specific race of people.

Luis V.

September 20th, 2010
10:18 pm

One last thing, it is completely STUPID to think that an illegal immigrant will return to the United States and join a gang or cartel. You cannot stereotype a race like that. You cannot make the assumption that illegal Mexicans will join a gang. This is why History is so important; we keep making the same mistakes over and over.