by Adam Freedman
Today’s topic: Is the Arizona immigration law constitutional.
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Is the Arizona Immigration Law Constitutional?
Give me your tired, your poor, your huddled masses yearning to be . . . wait a minute--not so fast. The subject of immigration stirs up intense emotions, especially along the border. In April, Arizona’s governor sparked a nationwide debate when she signed a law (SB 1070) designed to crackdown on illegal immigration. Supporters of the law say it is a necessary measure to combat the flow of undocumented aliens.
Did Arizona Push Its Law Over the Borderline?
But the law has come in for 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! Wow. Is the Arizona immigration law really that bad?
The quick and dirty answer is that the law itself does not create any new immigration standards beyond what already exist in federal law. However, a court may find that Arizona’s enforcement of the law interferes with federal supremacy over immigration law.
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Back to the issue.
What Does the Arizona Immigration Law Say?
First, a quick summary of the Arizona immigration law. The law prohibits harboring or employing “unauthorized aliens,” that is, persons with no right under federal law, to reside in the U.S. It also requires police officers to verify the immigration status of people they stop for traffic violations or other infractions, if they have “reasonable suspicion” to believe that the person might be in the U.S. illegally. If it appears that the person is an unauthorized alien, then the state or local police must transfer the person to the federal Immigration and Customs Enforcement agency (or “ICE”--that’s the entity that used to be known as the INS).
The Law Requires “Reasonable Suspicion” to Question an Immigrant
Some critics argue that the law encourages racial profiling or unreasonable searches and seizures. It is unlikely, however, that the law will be struck down on this basis. SB 1070 authorizes police to check a person’s immigration status only if the officer has “reasonable suspicion” that the person is undocumented. “Reasonable suspicion” is a well-established legal standard for conducting certain searches. For example, as I explained in an earlier article, Are Strip Searches in School Legal?, school officials can search students based on “reasonable suspicion.”
The Arizona Law and Racial Profiling
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 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.
Why the Arizona Law Might be Unconstitutional
But 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. If you’ve ever wondered why, for example, Michigan can’t mount an invasion of Canada, or why Delaware can’t slap a tariff on Chinese goods, it’s because 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. What makes the Arizona law interesting is that it attempts to get around this by incorporating federal immigration law. Basically, the law simply adds certain measures of state enforcement to what the feds are already doing.
The Supreme Court has 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. 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 proponents say that Arizona has a vital interest in fighting human smuggling and kidnapping along the border.
Is the Arizona Law “Harmonious” with Federal Law?
But opponents of SB 1070 contend that the law is not truly harmonious with federal regulation. For example, the law arguably undermines federal enforcement strategy by alienating Latino organizations that might otherwise cooperate with federal officials. There’s also the risk that Arizona officials might interpret federal immigration law differently from the federal ICE officials.
Though these appear to be potential outcomes, a court may find that they are not obvious from the text of the law. In which case, SB1070 might survive an initial court challenge. But don’t be surprised if the law comes back to court after it’s been in operation for a year or two.
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