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As expected, the Supreme Court has decided to weigh in on Arizona’s illegal immigration law- SB 1070. As most are aware, the law was signed into effect by Governor Jan Brewer and was immediately challenged in federal court by Holder’s Justice Department. The District Court then issued an injunction against certain sections of the law and the very liberal Ninth Circuit Court of Appeals has upheld the injunction. They found that the Arizona law was preempted by federal immigration laws. Without any argument, Congress has the enumerated power to establish uniform laws of immigration and naturalization. However, it is one thing to write and pass a law and quite another thing to actually then enforce that law. The lack of enforcement is what forced Arizona to take legislative action because Arizona is, by any stretch of the imagination, one of the primary entry points for illegal immigrants. The strain on their social services, infrastructure and, most importantly, law enforcement forced Arizona to take action.
I have written extensively on immigration in the past, sometimes sympathetically in support of immigrants. Extreme rhetoric on the Left and the Right have no place in a discussion of realistic reforms. And I have have repeatedly argued that there is no reason why immigration reform cannot occur alongside and simultaneously with improved border security measures and enforcement efforts. The attitude of “this first” or “that first” is best left on the kindergarten playground. That being said, I have also argued that “the more boots on the ground,” the better. Those boots can be the National Guard, the local Patriot groups, ranchers, Border Patrol agents, ICE agents, unmanned aerial drones, etc. In fact, a true commitment to enforcement would adopt a policy of “all of the above.”
In the case before the Court, four sections of the law are being contested. The first is Section 2(b) which allows law enforcement officers who have reasonable suspicion that a person is in this country illegally to make a determination of that legality by asking for appropriate identification. Speaking of extreme rhetoric, some on the Left have likened this aspect of the law to Nazi Germany tactics. However, it is a fact that immigrants, since the 1950s, have been required to carry appropriate identification attesting to their legal status in this country. That law was implemented by Harry Truman. Using this liberal logic, does this then make Harry Truman a Nazi? Naturally, since the bulk of illegal immigrants in Arizona are Hispanic, there is a fear that law enforcement will target Hispanics in particular for identification. However, the State has taken incredible pains to prevent and deter racial profiling. Additionally, the request must be based on a reasonable suspicion. Is it reasonable to request ID of Representative Grijalva? Of course not. Is it reasonable to ask ID of a group of Hispanics hanging outside a Home Depot at six in the morning? Maybe. Is it reasonable to ask ID of a Hispanic driver with a tail light out? Of course it is. I personally find it ironic that no one on the Left objects to policies or even laws that require one to show ID to purchase alcohol or cigarettes, or even conduct a credit card transaction, but by the same token they object to ID checks for something infinitely more important like whether the person is in this country legally. It defies logic AND THAT is unreasonable.
Section 3 makes it a crime punishable by a fine or jail sentence for anyone who willfully refuses to carry ID. All the state is saying here is that if you are in the country legally, you should have the appropriate ID to prove it. This ection simply puts teeth into the law. The key part, to me, is deliberate refusal to carry ID. Look at the analogy from traffic law. There is a separate offense for people who fail to carry their license or registration when operating a vehicle. Sometimes this is by accident- you forgot your wallet in the other pants. In most cases, the primary offense is taken care of the “failure to carry” offense is overlooked, as I suspect would happen in Arizona provided the person CAN produce ID.
Section 5(c) basically states that if you are in the country illegally, they cannot work or seek work in Arizona. Duh!! Seems rather self-explanatory. And the Circuit Court’s reasoning in their opinion is confusing here. They determined that Federal immigration law is designed to deter and inhibit employer exploitation of illegals. The State of Arizona’s law is simply designed to keep it from ever getting to that point. It is true that federal immigration policy changed in the 1960s under Johnson in response to employer abuses. Furthermore, Reagan’s IRCA in 1984 specifically targeted employers with fines, not employees or potential employees. Here, it is quite possible that the State may not prevail given stated and historical Congressional intent in enacting these reforms.
Finally, Section 6 allows police to make an arrest without a warrant with probable cause if they believe a person has committed an offense for which they can later be deported. This section is problematic for the State to defend on a coupe of levels. First, when it comes to arrests without warrants, we are starting to get into possible violations under the 4th, 5th and 6th Amendments of the Constitution and the Court will apply strict scrutiny in order to analyze the law. Here, the STATE would be under an obligation to justify the law instead of less onerous options and their reasoning has to be overwhelmingly convincing. Simply saying “We have an illegal immigrant problem in Arizona” will not suffice. Secondly, the state of the law is in flux not only with respect to immigration law, but criminal law in general. Just this term, the Court heard a case where the government argued that an inadvertent case of tax evasion, but tax evasion nevertheless, was a case of “moral turpitude” and a violation as a deportable offense. The Court reasoned otherwise. Also, the definition of what a “felony” is differs from state to state and between states and the Federal government. While the Court has upheld state “three strikes” laws, the definition of what constitutes a “strike” is still heavily litigated.
Predicting any Court decision is full of pitfalls although one can get a decent indication of the leanings of Justices from oral arguments. In this case, the government is arguing total preemption under Article I, Section 8. They also argue that if states like Arizona, and now others, start to regulate immigration matters, no matter how well-intentioned or the extent of the problem, it tangentially affects the federal government’s ability to conduct foreign policy. On the other side, and if Arizona sticks to the philosophy and is not tricked out of it by the Liberal wing of the Court, if the state argues they are merely “helping” the federal government in their enforcement efforts, they stand a greater chance of prevailing in whole or part. And they have a case. Speaking of Congressional intent, Congress has on many occasions adopted programs where they have incorporated local and state law enforcement. With immigration, the entire 287(g) program where local and state police are trained by the Federal government in immigration enforcement is a testament to the Federal-State cooperative paradigm. Because Obama and Holder have gutted the program does not negate Congressional intent. In fact, the program has proven quite successful where used.
In the end, it is most likely that the decision will be a little for the State and a little for the Federal government. I believe the documentation requirement will be upheld and the “willfull refusal” provision, since it involves Due Process concerns, will have to be modified on remand. I believe the worker provision will be struck down based on Congressional intent arguments with Kennedy siding with the Liberal wing of the Court and that Section 6 will be struck down quite convincingly. In the end, the major portions of the law will be upheld and the preemption arguments overcome and the law construed as a furtherance of federal law. If the State can adequately and correctly make their case, then they can convince the ultimate swing vote- Anthony Kennedy.