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Josh Ross

Rhetoric 110


Is the Arizona Immigration Law Justified?

"As Americans, we must stand up against this law. It's a travesty, and it's a moral

outrage," said Elena Letona at a recent demonstration against Arizona's new illegal

immigration law (Viper, 1). Prior to the legislation being moved through Arizona's state

legislature, a local rancher was killed by an illegal immigrant. This act ignited the flame

that brought forth this new law. The Arizona State Senate voted 17-11 to pass "what

some people would call the country's strictest and most controversial immigration bill"

(Sterline, 64). It requires police to question people about their status if there's reason to

suspect they're in the country illegally. The bill would also allow individual lawsuits to be

brought against government agencies that hinder enforcement of immigration laws and

make it illegal for employers to hire or knowingly transport illegal immigrants for daily

labor. The Arizona Republic has been calling for comprehensive immigration reform

continuously since 2002. For a brief time, our congressional delegation led the nation on

this front. The state now has it, but it is accompanied by two fighting divisions (Arizona

Republic, 1).

On one side of the continuum, supporters of the law say it is a necessary measure

to combat the flow of undocumented aliens. But the law has recieved harsh criticism

among civil libertarians and immigration activists. The Obama administration is

investigating the legality of the law, various artists have announced a boycott of Arizona,
and Arizona Iced Tea has even posted a message on its website clarifying that the

company is actually headquartered in New York (Freedman 5). "Just how far does this

new policy deviate from the bindings of the Constitution, that even this popular iced tea

company attempts to disassociate from Arizona" (Freedman, 5)? The answer is that the

law itself doesn’t create any new immigration standards beyond what already exist in

federal law (Freedman, 7). However, a court may find that Arizona’s enforcement of the

law interferes with federal supremacy over immigration law. If authorities have

“reasonable suspicion” to believe that a person might be in the U.S. illegally (and the

suspect is without proof of citizenship), then the state or local police must transfer the

person to the federal Immigration and Customs Enforcement agency. Some critics argue

that the law encourages racial profiling or unreasonable searches and seizures. But it is

unlikely that the law will be struck down on this basis. SB 1070, the formal name for the

policy, authorizes police to check a person’s immigration status only if the officer has

“reasonable suspicion” (a well-established legal standard for conducting certain searches)

that the person is undocumented. In addition, the Arizona law states that police may not

consider “race, color, or national origin” in deciding whom to question. And the law does

not attempt to overturn any of the existing constitutional protections against racial

profiling. It is of course possible then that a police officer may violate a suspect’s rights

while enforcing this law; however, the text of the law attempts to prevent such violations.

However, the Arizona law might run into trouble for violating a different

constitutional principle, known as “pre-emption.” Under this doctrine, certain issues are

reserved exclusively for federal regulation (Freedman, 5). Federal law pre-empts all state

action in the area of foreign relations and international trade. Immigration is another one
of those issues subject to complete federal control. The Constitution empowers Congress

to establish a “Uniform Rule of Naturalization,” and the Supreme Court has expressly

upheld federal supremacy in this area since the late nineteenth century (Freedman, 6).

Arizona law attempts to loophole around this "by incorporating a federal immigration

law" (Freedman, 7). Basically, the law simply adds certain measures of state enforcement

to what the feds are already doing. However, the Supreme Court has actually allowed

some state laws on immigration. In 1976, the Supreme Court (DeCanas v. Bica) upheld a

California law prohibiting businesses from knowingly employing unauthorized aliens

(Freedman, 9). The Court held that states can regulate illegal immigrants in a manner

consistent with federal law, provided they are trying to protect a vital state interest. In the

case of Arizona, the law’s supporters say that Arizona has a vital interest in fighting

human smuggling and kidnapping along the border.

Advocates of the bill say it will aid the police in cracking down on violent

offenders who cross the border illegally. The U.S. Constitution clearly assigns the federal

government the responsibility to protect the states against invasion. John F. McManus,

president of the John Birch Society, said, "If that duty were faithfully being carried out,

there would be no need for the recently passed law in Arizona" (Witt, 4). The

Constitution didn’t say military invasion, just invasion. And the millions who have

broken our laws and inundated our country constitute an invasion. A large percentage of

Arizona’s crime, welfare, medical costs, and narcotics problem is traceable to the illegal

“border crossers.” The bill's supporters argue, "We supposed to deal with the situation

because practically no help comes from those assigned to cope with the problem. People

act as if Arizona is the only state to initiate a law like this (Witt, 7)."
Oklahoma enacted tough laws against hiring illegal immigrants, and as the federal

government enacted these laws, many of the illegal immigrants fled the state. If Arizona

would be strict about employing illegal immigrants, then they would have less

immigrants trying so hard to get across the border. There are a lot of drug cartels in

Arizona and they do not come here to seek employment. There are also a lot of illegal

immigrants who come here to work and send money back home. Justin Raimondo,

editorial director of Antiwar.com, said, "The large amount of illegal immigrants taxes our

health care system, burdens our schools system, and creates additional concerns for our

police." That being said, it is Arizona’s responsibility to enact such a law to keep their

legal citizens safe.

On the other side of the continuum, opponents of the Arizona immigration law are

now looking to the court system to declare the law unconstitutional. Any such challenge

would likely come in federal court. Some reports have the Obama administration's Justice

Department already working on a claim to file. However, "overturning a law passed by a

democratically elected governmental body is easier said than done. It will take more than

simply yelling "unconstitutional" or claiming the law is racist," said Frank Askin,

professor of law at Rutgers University (Sterline, 5).

There are two Constitutional challenges that would deem this new law

unconstitutional: Federal law preemption and vagueness. Generally, federal law preempts

state law when the two conflict under the Supremacy Clause in Article VI of the U.S.

Constitution (Witt, 2). Therefore, if any federal law directly conflicted with the Arizona

law the federal law would win out. The problem for opponents is that there is no federal

law on the books which directly contradicts what Arizona is doing.

Therefore, the Justice Department would instead have to argue that federal laws

indirectly preempt Arizona's law in the area of immigration. To do this the federal

government would argue that federal law is pervasive that it occupies the field of

immigration and no other state could therefore pass a law regulating that area. The

Justice Department would likely point to federal government's statutory and regulatory

scheme enforcing immigration laws. They would also point Article I, Section 8 of the

U.S. Constitution which gives the U.S. Congress the power over naturalization (Witt, 4).

Finally, the Justice Department would point to a long history in which the federal

government has enforced immigration laws rather than state government.

A possible challenge could be based on the vague language of the Arizona

immigration law. The Supreme Court has ruled that every criminal law must be clear

enough for the average person to understand (Witt, 6). Laws which do not meet this

requirement will be declared void for violating the Due Process Clause of the Fifth and

Fourteenth amendments. Arizona would argue that the federal government does not have

the sole power to enforce immigration. While acknowledging the federal government

power to enforce immigration laws, the state of Arizona would say that they also have the

right to enforce the laws. In effect, Arizona would argue that since the laws don't directly

contradict federal laws, their laws should be allowed to coexist beside them.

The reasonable suspicion requirement is not new to the courts. In the case of

Terry v. Ohio the U.S. Supreme Court announced that a police officer is allowed to stop a

suspect if they have "reasonable suspicion" that the person has engaged in a crime (Witt,

8). In addition, cops are allowed to give a "pat down" to a suspect if they have

reasonable suspicion the person is engaged in or about to be engaged in a violent crime.

However, reasonable suspicion has never been used in the context of illegal

immigration. Previously, reasonable suspicion has only been used to stop someone who

is suspected to be engaged in some kind of behavior, such as a crime. Rep. Eleanor

Holmes-Norton (D-D.C.), said, "So, for example, if two men walk out of a jewelry store

with ski masks at 2 AM a cop would have reasonable to stop them" (Sterline, 5).

Reasonable suspicion has never been used to stop someone for their state of being. There

are clues that law enforcement can use to identify someone engaged in a crime, but many

have questioned what possible clues local law enforcement could use to suspect someone

is an illegal immigrant. This is where concerns about racial profiling come into play and

any court will likely have to account for that factor in their analysis.

"The law is vast and there are other avenues that opponents could take to try

overturn the law. However, all other methods seem unlikely to succeed at this point," an

Examiner writer said. Some say the Arizona law violates the Equal Protection Clause of

the Fourteenth amendment (Witt, 11). To prove an equal protection violation you must

prove that a law treats different groups differently on its face. It is not enough to prove

that the law has a disparate impact in effect (if this were the case most laws would violate

the equal protection clause). While the Arizona immigration law is likely to have a

bigger impact on Hispanics, the law is written without reference to any particular race or

"suspect class" of individuals. Unless opponents of the law had some evidence that the

purpose of the law was to discriminate against Hispanics (something Arizona is sure to

deny) an equal protection claim will probably not go anywhere.

In addition, opponents could make a substantive due process claim against the

Arizona law. To do this they would have to show that some fundamental right is being
violated, however, the problem is there is no apparent fundamental right being violated.

The Supreme Court has already upheld a Nevada law that required people to identify

themselves to police officers when they are stopped for suspicious behavior. So the court

is unlikely to rule that citizens have a "fundamental right" to withhold identification

(Witt, 14). There is certainly not a fundamental right to be an illegal immigrant so that

seems to eliminate all the possible substantive due process claims.

Throughout all the research I’ve accumulated regarding whether or not this law is

justified or not, one thing has got me perplexed. Why are people regarding this as a racist

and discriminatory act? Nowhere in the law does it say anything about targeting

Hispanics, or Blacks, but there have been countless numbers of protests coming from

minorities. Arizona is being accused of intolerance, hate, discrimination and abuse by

enforcing its new law. It is only aimed at people who have broken the law. In my opinion,

it’s kind of like asking a young person for ID when it is suspected that the person might

not be of legal drinking age. Personally, I think Arizona is doing what our federal

government has failed to do. It is protecting its border against drug lords and criminals.

Legislators there are protecting their citizens and have taken the state’s sovereignty into

their own hands. Now, our government is suing Arizona when 57 percent of our citizens

polled are in favor of the law. What happened to government for and by the people? We

wanted change, and this is it.