U.S. Government vs. State of Arizona, A Constitutional Battle

By Daniel Downs

The federal government is suing Arizona to block the implementation of its new immigration law. The U.S. Department of Justice will argue that the new state law violates the Constitution by claiming authority over immigration policy, which has historically been the jurisdiction of the federal government, according to a Politico news report.

Does Arizona have a constitutional right to police immigration within its borders? Let’s look at Arizona’s new immigration law.

Section 1 of the new law states the intention of Arizona lawmakers:

“The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

Critics of Arizona’s immigration law focus on law enforcements obligation to determine immigration status of any person whose behavior warrants reasonable suspicion. Preceding any so-called racial profiling must be lawful contact between an officer and the illegal immigrant. As stipulated in the law, lawful contact means a police officer must have stopped an illegal for a traffic violation or for other public offense. The same applies to employers hiring known illegals. The law provides two mechanisms for determining whether an employer has knowingly hired illegals: One is a complaint form made available by which the public may report illegal hiring to officials; and the second is employer reporting of new hires to the state and federal government. (Sec. 2, Article 8; Sec. 4-7)

I suspect the federal government may not like Arizona’s intentions to work with federal immigration departments as well as Homeland Security in the effort to enforce strictly federal immigration laws. (Sec. 2-3, 6-8)

Another area of contention is the level of state, county, and local enforcement involvement intended by Arizona’s new law. Because Arizona is a border state with numerous entry points accessible to illegals, the potential for state and federal law enforcement overlap and jurisdictional conflict may be point of serous concern.

The question, however, is whether Arizona’s immigration law is constitutional. Throughout the text of the law, state compliance with federal immigration law is prominent in the various means of enforcing both sets of laws.

Even so, is the Dept. of Justice right? Does the Arizona law violate the U.S. Constitution?

In Section 8, Congress has the power to “provide a uniform Rule of Naturalization.” This is the only legal basis for any and all immigration and naturalization law. The federal government has a right and obligation to protect the borders of all and every state by laws defining who may legally cross those border, how they may obtain permission to do so, and by effectively policing those border to prevent illegals from entry, its obligation also requires actual enforcement of laws. If the federal agencies created for that purpose do not, it is the obligation of states like Arizona to protect its citizens from illegals as it deems necessary. Once illegals have crossed their borders, states like Arizona have Constitutional right and obligation to make and enforce laws that protect their citizens from unwanted foreigners. As long as those laws comply with reasonable existing state and federal laws, no constitutional law could be violated.

Only federal bureaucrats, who evade their obligation to enforce existing law while waiting and working to win the votes of those illegals and their sympathizers, are the only ones violating Constitutional law.

If the Obama administration wins, Ohio will also lose the right to uphold the rule of law as well as to protect its citizens from illegals. The argument that states may still protect its citizens against crime, whether committed by illegals or not, is fallacious. It is a rare occasion that law enforcement actually protects a lawful citizen from robbery or assault. Prevention is rare. Prosecution after the fact is the norm. Arizona’s immigration law at least adds a small measure of prevention to the very misleading term “protection”.

Sources: Politico, July 7, 2010 and Arizona S.B. 1070.

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