At a recent campaign stop, Republican gubernatorial candidate Terry Branstad proposed a law similar to Arizona’s in order to deal with the state’s growing illegal immigration problem. While the proposal, which has received some media criticism, goes even further, perhaps impermissibly so, than Arizona’s, its final form will likely mirror the much more constitutionally-defensible Arizona law (SB 1070).
Though the Obama Administration has now filed suit to stop the Arizona law on federal preemption grounds, the odds of it being upheld in federal court are good. While the federal government has primary responsibility in the area of immigration, no court has ever held that states lack the authority to also pass their own regulations so long as they do not conflict with federal law. In 1977, the Supreme Court upheld a state law regulating the documentation of workers, and just recently the liberal 9th Circuit Court of Appeals upheld an Arizona law which made it illegal to knowingly employ an illegal alien.
Like prior state immigration laws which have been upheld by the courts, Arizona’s new statute does not interfere with federal immigration law. It does nothing more than follow federal policy in this area, and it specifically requires that it “shall be implemented in a manner consistent with federal laws regulating immigration.”
Though critics continue to refer to Arizona’s law as a “papers please” regime that will lead to racial profiling, the Department of Justice concluded that these claims lacked sufficient legal merit and therefore did not raise them in the lawsuit. In order to prevent cases of racial profiling, Arizona’s statute specifically provides that an officer “may not solely consider race, color or national origin.” It also guaranteed that the new law would “protect[…] the civil rights of all persons and respect the privileges and immunities of United States citizens.”
Other critics maintain that the law will allow police to engage in racial profiling by authorizing them to question an individual about his or her immigration status based on an officer’s reasonable suspicion. Reasonable suspicion, a Fourth Amendment test that has been developed by the courts for decades, simply states that an officer may stop a suspect if he believes, in the “totality of the circumstances,” that a crime is being committed.
Under the Arizona law, an officer can only inquire into an individual’s immigration status if, after having already lawfully stopped that individual for an unrelated offense, the officer determines from the totality of the circumstances that the individual may be in the country illegally. The constitutional test of reasonable suspicion has never been satisfied by the sole reliance on the color of one’s skin; rather, it has demanded that an officer rely on a number of factors that give rise to the “totality of the circumstances.”
Others critics argue that we should not be criminalizing those “people who come here seeking a better life,” that deporting them would split up families and penalize the natural-born children who remain, and that it would make it harder for Hispanics to cooperate with police. These same critics, however, do not make such “humanitarian” arguments on behalf of other criminals, nor could they with a straight face.
No one argues that we should not punish the embezzler or robber who was simply seeking to make a better life for himself, the single-parent mom who has to go to prison for drunk driving and leave her three children alone, or mob and gang violence because it would drive their members underground. Far from being a victimless crime, illegal immigration costs taxpayers millions in government benefits, robs the victims of identity theft of their credit and good name, and provides easy entry for Islamic terrorists.
Critics of Arizona’s law enjoy placing requirements on immigration enforcement that no law could possibly satisfy simply because they do not want to see any meaningful enforcement, either before or after their hoped for “comprehensive” immigration reform becomes a reality. The truth is that critics are unable to explain how immigration reform will suddenly transform enforcement efforts from being allegedly unconstitutional into constitutional.
Nor can they explain how such reform will make it permissible for states to pass enforcement laws enabling local law enforcement officers to assist with federal efforts. Such critics noticeably do not explain that in the absence of such laws, the federal government is constitutionally prohibited from commandeering state resources to assist in enforcing federal law.
In short, reform without Arizona-style enforcement is an open-border policy that continues the status quo rather than fixes it.
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