25 Apr Arizona Immigration Law to be Challenged in Court
With Arizona’s controversial immigration-enforcement bill now law, the battle will quickly shift from the state Capitol to the courts, where opponents plan to challenge it as an unconstitutional intrusion on federal authority and a violation of civil rights.Proponents defend the legislation signed Friday by Gov. Jan Brewer as legally sound. But critics say the U.S. Constitution makes it clear that the federal government alone has the responsibility to enact and enforce immigration laws. Some fear other constitutional rights will be trampled through racial profiling and that vital federal money will be diverted from other national priorities. Under the tough new law, which goes into effect 90 days after the legislative session ends, it will be a state crime for undocumented immigrants to be in Arizona. It is the only state with such a law.Some provisions of the far-reaching Arizona legislation, opponents predict, will lead to racial profiling and possible violations of the Fourth Amendment, which guarantees the right against unreasonable searches and seizures, and the 14th Amendment, which guarantees equal protection under the law.Under Arizona’s law, local law-enforcement officers will have the authority to ask about immigration status if they have a “reasonable suspicion” that a person is undocumented.”It’s extraordinarily vulnerable to a legal challenge,” said Thomas Saenz, president and general counsel of the Los Angeles-based Mexican American Legal Defense and Educational Fund and an attorney who in the 1990s helped overturn most of the provisions of California’s immigration-related Proposition 187.”I expect multiple lawsuits” in federal and possibly state courts, he said.The ugly specter of racial profiling, which violates civil rights, has drawn rebukes from Democrats and Republicans alike. On Friday, President Barack Obama said he has directed administration officials to “closely monitor” the civil-rights implications of the Arizona law. Newly appointed interim Maricopa County Attorney Rick Romley, a Republican, also expressed civil-rights concerns last week when urging Brewer to veto the bill. Phoenix Mayor Phil Gordon, a Democrat, signaled Friday that he intends to pursue a lawsuit. The Justice Department also could try to intervene legally.Under the Constitution’s “supremacy clause,” the Constitution and federal law trump state law. Article 1 of the Constitution, which spells out Congress’ powers, specifically gives U.S. lawmakers authority to establish a “uniform Rule of Naturalization” and to regulate commerce with other nations. Opponents of individual state action on immigration argue a uniform national immigration policy makes sense and is preferable to a patchwork of different laws in different states.Timing is not clear, but legal experts speculate that certain immediate challenges to the law – such as the argument that federal authority is supreme on immigration – could result in a judge blocking the law from ever taking effect. Other challenges, such as those claiming racial profiling, may require enforcement of the law first to create a test case.In Saenz’s view, the Arizona law not only wrongly usurps federal authority on immigration, it also brazenly tries to unilaterally redirect scarce U.S. resources to the state at the expense of other national immigration priorities. Only the federal government can deport illegal immigrants.”What they expect to happen, obviously, is a whole bunch of people would be picked up by Arizona police and turned over to (U.S. Immigration and Customs Enforcement),” Saenz said. “Well, that then forces ICE to divert resources to Arizona when they have made a decision on a national basis to direct limited resources in ways that are consistent with the enforcement priorities set by the federal government, not by any state or local government.”Homeland Security Secretary Janet Napolitano, Brewer’s predecessor as Arizona governor, on Friday echoed those concerns.”The Arizona immigration law will likely hinder federal law enforcement from carrying out its priorities of detaining and removing dangerous criminal aliens,” she said. “With the strong support of state and local law enforcement, I vetoed several similar pieces of legislation as governor of Arizona because they would have diverted critical law-enforcement resources from the most serious threats to public safety and undermined the vital trust between local jurisdictions and the communities they serve.”Annie Lai, an Arizona ACLU lawyer, has been studying the law and agreed it contains “a number of constitutional flaws” that could bolster a legal attack.”This is one of the most extreme and direct attempts by a state to regulate immigration law, and that is prohibited by the supremacy clause of the Constitution,” she said. “The immigration-enforcement provisions do not have adequate safeguards that United States citizens, legal residents, Native Americans and other minorities will not be detained and arrested.”State Sen. Russell Pearce, R-Mesa, the Arizona measure’s sponsor, and other supporters counter that the bill is constitutional and that opponents are misrepresenting the potential for racial profiling and other abuses.But they are bracing for incoming litigation.Pearce, the architect of several immigration-related Arizona laws, last week noted that a state law establishing penalties for employers who knowingly hire illegal workers faced similar criticism before it went into effect on Jan. 1, 2008, but it has been upheld in U.S. District Court and the 9th U.S. Circuit Court of Appeals. The U.S. Supreme Court last year asked Obama’s solicitor general for a brief explaining the administration’s views on the law as a precursor to possibly taking up the case.”(Since 2004) when we passed Proposition 200 just to stop voter fraud and welfare fraud, I’ve been sued seven times, won seven times,” Pearce said Wednesday in an interview on MSNBC. “Employer sanctions – I’ve been sued five times, won five times.”Kris Kobach, a law professor at the University of Missouri-Kansas City School of Law who counseled Pearce when he was writing Senate Bill 1070, said Arizona simply is taking action on what Congress already has deemed illegal, so the state is not infringing on federal authority or running afoul of the supremacy clause.”The bill basically makes it a penalty under state law to do what is already a crime under federal law,” he said. “If the state is concurrently prohibiting the same behavior that the federal government is, then the state is not preempted and is acting consistently with Congress’ objectives.”Further, the bill contained language that specifically says state and local law-enforcement officers “may not solely consider race, color or national origin” in implementing the law “except to the extent permitted by the United States or Arizona Constitution.””There is absolutely nothing in the bill that could be construed as legitimizing racial profiling,” Kobach said. “On the contrary, such profiling is prohibited.”Regardless, some are troubled that the law gives police any ability to consider race, color or national origin and say it will lead to illegal racial profiling.”That is almost inevitably going to be enforced in a racially discriminatory way, because how are the police going to have a ‘reasonable suspicion’ that you’re here illegally?” said Paul Bender, a professor of law at Arizona State University’s Sandra Day O’Connor College of Law and a principal deputy U.S. solicitor general from 1993 to 1997 under President Bill Clinton. “They’re not going to ask every Anglo that they stop for speeding to show their immigration documents. If they did, we wouldn’t have them and we’d all go to jail. They’re going to ask the people who look Hispanic. Some of them are not going to have them, and they are going to be arrested.”Other legal scholars agree that immigration is in the purview of Congress and that the Arizona Legislature may have overreached this time.”The harder question is: Are there things that states can do that don’t infringe on the federal government’s responsibility?” asked Carl Tobias, a professor of law at University of Richmond School of Law in Virginia.Muzaffar Chishti, a lawyer who monitors state and local immigration laws for the non-partisan Migration Policy Institute, said Congress has left Arizona and other states little leeway on immigration. Arizona has cited one opening provided by Congress in a 1986 law – permission for states to take action through “licensing and similar laws” – as the basis for its employer-sanctions law. However, the state may have gone too far in authorizing all local police to enforce immigration laws, he said.Chishti pointed to the federal 287(g) program, which Congress created, as proof of the federal government’s discretion and control over the issue. The program allows partner local agencies such as a sheriff’s office to enforce immigration laws. Training is required, which indicates that the federal government doesn’t believe that every local police officer is properly prepared for the task.”If you just follow the logic of the 287(g) agreement,” he said, “if Congress thought that states and localities have an inherent authority to do this, which is sort of what Arizona in this case would inevitably be claiming, then there would not be a need for a 287(g) program.”