Tag Archives: immigration law

AZ v. US: Supreme Court Declares Criminalizing Illegal Immigrants & Warrantless Arrests Unconstitutional, Lets Stand Police Status Checks

WASHINGTON, DC — A divided Supreme Court has struck down as unconstitutional key provisions of Arizona’s immigration law pertaining to the criminalizing of illegal immigrants (for not possessing their federal registration cards while working, applying for work or soliciting work) and warrantless arrests by police, while unanimously affirming the “show me your papers” part of S.B. 1070 that requires police to perform roadside immigration checks of people they determine might be in the country illegally. The Rutherford Institute had filed an amicus curiae brief in State of Arizona v. United States of America asking the Court to declare S.B. 1070 unconstitutional on the grounds that giving police officers broad authority to stop, search and question individuals—citizen and non-citizen alike—based primarily on appearance, race and the personal, subjective views and prejudices of the police, would move our nation yet one step closer to a “police state.”

“While the criminalizing and warrantless arrest provisions in the Arizona immigration law needed to be struck down, unfortunately, this ruling does little to recognize or counteract the real danger inherent in S.B. 1070, which is the erection of a prototype police state in Arizona,” said John W. Whitehead. “By allowing Arizona police to stop and search people, citizens and immigrants alike, based only on their own subjective suspicions and visual observations, and by failing to address the core issue being debated here—namely, whether Americans have any Fourth Amendment protections anymore—the Court has opened the door to a host of abuses, the least of which will be racial profiling. Without fail, we will be revisiting this issue again.”

In April 2010, Arizona enacted S.B. 1070 in response to a perceived crisis in illegal immigration. The law requires law enforcement officials to determine the immigration status of a person stopped, detained or arrested if the officer suspects that the person is an unauthorized immigrant. Before such persons may be released, police must determine and verify the person’s immigration status with the federal government. S.B. 1070 also makes it a state crime, punishable by up to 20 days in jail, for an alien legally present in the country not to have in his or her possession an alien registration document. The law also allowed state law enforcement officials to make a warrantless arrest of any person upon probable cause that the person has committed an offense which makes the person removable from the United States under federal immigration laws. The Obama administration challenged the constitutionality of S.B. 1070’s provisions, arguing that they were preempted by the Supremacy Clause of the U.S. Constitution. A federal district court in Arizona agreed, forbidding Arizona from enforcing the law, which the Ninth Circuit Court of Appeals similarly affirmed.

In weighing in on the case before the U.S. Supreme Court, attorneys for The Rutherford Institute argued that enforcement of S.B. 1070 poses a threat to the Fourth Amendment rights of all citizens and others because it authorizes officers to make arrests for misdemeanors constituting “excludable” offenses even though the minor offense was not committed in the officer’s presence. Moreover, the requirement that officers determine the immigration status of detainees would require that detentions extend well beyond what is reasonable under the Fourth Amendment. S.B. 1070 also poses a threat to rights under the Equal Protection Clause because law enforcement officials will, intentionally or subconsciously, use race as a proxy for decisions about a person’s immigration status, resulting in racial profiling of Hispanics.

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.