Amendment IV, Constitution of the United States
The Legislature of the State of Arizona did something recently which reflects poorly on both the United States and the people of that state. The legislature passed and Governor Jan Brewer signed a sweeping bill which criminalizes being in the state of Arizona without legal status. SB 1070, which will go into effect 90 days after the end of the legislative session, makes it a criminal offense to be in the state without being either a US Citizen or to have legal permission to be in the United States. The bill makes it very clear that it is attempting to enforce federal law relating to immigration control and control of the borders.
This law contains some troubling constitutional provisions. The first, most troubling section is quoted below:
"B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c)." (capitalization from original)
The troubling phrase here is "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States". This is a violation of the right of persons to be free from unreasonable search and seizure. The US Supreme Court has determined that where a police officer stops a person and demands identification, that such as stop constitutes "a seizure" within the meaning of the 4th amendment. "It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio 392 US 1 (1968). What then, constitutes reasonable suspicion that a person is an alien who is unlawfully in the United States? The statute is silent on what constitutes a reasonable suspicion, but it does not take much to extrapolate from there: anyone who is Hispanic will surely face suspicion, anyone with an accent, (especially Hispanic) will be subject to stop and a demand for their papers. The law essentially means that anyone who can be potentially stopped should carry their papers on them at all times. That US citizens will be stopped and accosted, and thus, have their civil liberties violated is an absolute certainty.
An associate of the author's is a specialist in immigration law. His views on this statute, after reading it were that the bill's author had little if any grasp of federal immigration law and how the three federal agencies who enforce and regulate immigration, Citizenship and Immigration Service, Customs and Border Patrol, and Immigration and Customs Enforcement (CIS, CBP, ICE) operate. Further the definition used for a trespassing alien is linked to 8 USC 1304 (3) and 1306 (a). 8 USC 1304(3) deals with a requirement for an alien to carry their green card, when it has been issued legally. There are a multitude of reasons for someone who is a lawful permanent resident but not have a green card, including renewals, lost or stolen cards, spouses or children of lawful permanent resident, etc. 8 USC 1306(a) deals with aliens being required to register with immigration authorities when required to do so by the Secretary of Homeland Security. Not all immigrants are required to do so, mostly those from countries who are defined as sponsors of terrorism, etc.
The Constitution of the United States grants to Congress the right to determine standards for entry into the United States. (Article II, Section 8) During the early part of US history, immigration control was the furthest from the minds of both the public and Congress. However, in the 1880's, ugly bouts of racism and bigotry took place, resulting in the Chinese Exclusion Act of 1882. A series of acts over the years now restrict who can enter the United States and qualify for residency and the right to work in the US. Throughout all this period of time, however, it has been Congress which has passed and dealt with immigration and nationalization matters. The Supreme Court made this perfectly clear in Ping vs U.S. 130 US 581 (1889) where Justice Field wrote, "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence." 130 US at 603. The logic used by the Court was that control over its borders is a part of sovereignty, and that it is a nation which has control over its borders, not individual provinces or subdivisions within that nation.
It is widely agreed that our immigration system is broken. However, what isn't widely known is that there are already laws on the books to discourage unauthorized entry into the United States. People come to the United States to obtain jobs and to try and support their families in their native lands. They take jobs that not many people want, because these jobs often pay minimum wage or even less. They usually do not have any form of benefits or heath insurance. However, if there are no jobs for these people, the incentive to come and stay in the US becomes less. Certainly, the draw of family and a wealthier lifestyle is important. During fiscal year 2008, slightly over criminal 1,100 arrests were made by Immigration and Customs Enforcement (I.C.E.). Of these, only 135 were of owners, managers and human resources officers charged with knowingly harboring or employing aliens. The remainder were undocumented aliens who were further charged with identity theft and social security fraud. It was not until 2009 that Homeland Security Secretary Napolitano issued guidelines that indicated that more effort is going to be placed on worksite enforcement. This is long overdue.
Immigration reform is something that is needed in the United States, although perhaps not with the addition of new and onerous requirements on employers. Rather, enforcing existing law, requiring all employers to verify the eligibility of all potential employees and requiring that any name/social security number mismatch be fully investigated would resolve many of the immigration problems through reduced work opportunity for those without legal authorization to work and catching those with false papers earlier. As technology gets better, as the databases and fingerprint systems get better, it is already becoming more difficult for those without valid permission to work in the US to be here.
The Mexican government has issued a travel advisory to its citizens who are living or traveling in Arizona, urging them to make sure they have their papers on them at all times and to report harassment by law enforcement to any of the five consulate offices in Arizona. However, the action by Arizona has not helped Arizona's reputation, and if there is anything that would discourage tourism, this is a good example.
This law has already resulted in a number of conventions and other planned events which were planned for Arizona to consider other locations. Both the Republican and Democratic Conventions had been considering Arizona, and both parties have expressed concern about this law. The Arizona Hotel and Convention industry has been pleading with the rest of the country and world not to blame them, but, in honestly, why not? Its the voters of Arizona, including their members, who put the racist and bigoted lawmakers who approved this bill in office. They can and must speak loudly to their legislature to either rescind this bill, or the voters will, at the ballot box, rescind the members who voted for it. Hispanic voters are a voting block which increased clout. The Arizona politicians and their supporters may find themselves in trouble at the polls come November.