So, all the buzz today is about the new law in AZ, making it against state law to be in the country illegally. There’s lots of talk about legal challenges, but I’m unclear as to how that would play out. Is this law unconstitutional? Does it violate any federal laws?
This article, for instance, talks about legal challenges, but it does give any specifics that I can see.
Huh? That’s a legal challenge?
The law has a built in mechanism for fines of abuse, but the abuse is if the law is not being used:
Huh? Why would their assessment of the negative consequences of the law be confused with the legal challenge they plan to file?
It seems to me they cannot file a challenge until the law takes effect (90 days after the current legislative session ends) and they find a plaintiff with standing to sue.
IANAL. I would guess that there is a federal preemption issue, with recent precedent being PEDRO LOZANO et al v City of Hazelton.
While the Arizona law is different in some ways, the application of federal field preemption would be the same.
Actual lawyers, am I wrong about this?
This is way outta my field, and I’ve made no effort to research the issue other than reviewing Article 1, Section 8 of the Constitution, which provides in possibly relevant part:
*The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;*
Full text found here.
I think it is possible to argue that a state can’t legislate in this area because Congress has the bolded power.
That, plus the supremacy clause.
This is the basis for federal preemption.
You not only CAN argue it, but the Supreme Court has repeatedly said that the states have no power to legislate on immigration. see, e.g., Plyler v. Doe ("The States enjoy no power with respect to the classification of aliens. See Hines v. Davidowitz, 312 U.S. 52 (1941). This power is “committed to the political branches of the Federal Government.”)
Sigh. I make a lucky guess, and it wasn’t a lottery ticket. Still no sipping rum on the beach for [del]Zathros[/del] Oak. 
This seems to say that States can’t legislate classifications of aliens. The Arizona law is only enforcing current federal classifications, it’s not creating new classifications. Is there a problem with state police arresting people for federal crimes?
A better challenge might be under the 4th amendment. The fact that the law virtually allows the police to stop any brown person they want might bother some judges.
The governor says they are going to do extensive training and develop clear guidelines. It’s hard to imagine any guidelines that would actually work but that didn’t have a racial element to them.
This is not an immigration case. However you can argue that the law is in conflict with the Equal Protection Clause in the 14th Amendment. It may also be in conflict with the !st. It can be seen to impinge on your right to travel and/or your right of privacy.
They are not pulling over illegal aliens, but people who they suspect are. That means they are pulling over lots of people hoping to nab an illegal. If you are dark skinned and get pulled over 3 times on the way to work, you are going to be pissed. You also may lose your job.
I wonder if it violates the fourteenth amendment of equal protection of laws to citizens. It seems very likely that Hispanic (and other non-black, non-white) citizens will be arrested for not carrying ID papers in a proportion greater than that of white citizens, which puts an unfair burden on people to carry ID papers based on their skin color.
I’ve been wondering if there’ll be a bunch of brown-skinned citizen activists who will deliberately not carry ID papers in Arizona in an effort to be arrested and will then challenge the law and sue the arresting body.
edit: simulpost!
In Phoenix-ham they love the Governor.
Boo! Boo! Boo!
I doubt that a court would uphold stopping someone because of the color of his skin, to be certain. But if a policeman overhears someone conversing fluently in a foreign language or does not seem to understand English (after he was stopped for some other reason), checking for documentation doesn’t seem excessive.
Plyler v. Doe seems to rest, going by the Wikipedia article, on the result of intermediate scrutiny. That is to say, the law appears to be largely capricious. If the goal is to get rid of illegal immigrants, it should be a law that seeks to get rid of illegal immigrants. If the goal of the law is to cut education spending, it should be a law about cutting spending, not about illegal immigrants. Cutting spending to immigrants at the same time as allowing the immigrants to stay is simply cruel. But, if they had gone whole hog and thrown the immigrants out, that may have been an entirely different matter.
Phatlewt’s case seems to be more on-point. It’s decision seems to rest on a bunch of Federal law that is poorly worded, giving rights to “persons” rather than “citizens”. And so while it was likely not the intent to give those rights to non-citizens, until that legislation is changed, those rights must be granted. Unfortunately, the document is too long for me to pick up all of the minutiae to say which laws these are.
It does to me. There are a lot of recent immigrants who are here completely legally but don’t know English well.
There are several plausible challenges. I haven’t read the text of the law, so this is based on the media reporting of what it does, namely, permit local law enforcement to ask for proof of lawful presence in the country on reasonable suspicion that an individual is undocumented.
Here are three general categories, off the top of my head:
First, preemption. Federal law has an existing provision for states to enforce immigration laws. It’s called 287(g), and it is a provision of a statute signed by Clinton. If a state passes a law to do the same thing that is covered by 287(g), but without the protections (like federal approval), it may be preempted by 287(g). Aside from 287(g), there are other ways in which this law may be preempted by the general scheme of federal statutes on this subject.
Second, there’s a likely Fourth Amendment problem. The law assumes that reasonable suspicion of an immigration violation is a sufficient basis for a Fourth Amendment stop. Generally, the requirement is reasonable suspicion of criminal activity. But most ways in which one can be an illegal alien do not involve criminal offenses (i.e. overstaying a visa, some forms of border crossing).
Third, there are any number of potential as-applied challenges based on how the law is carried out, including equal protection challenges and challenges to the exercise of discretion in determining what constitutes reasonable suspicion of being undocumented. There’s probably also a good possibility of first amendment challenge, if the basis for the stops is what people are wearing or other cultural indicia.
My question is, is it constitutional to arrest someone for lacking documentation? I thought law was pretty firmly established that such was not grounds for arrest.
The states that have implemented these programs properly, under 287(g), generally get the power to arrest those who violate criminal immigration laws but not to arrest people for the vast majority of immigration violations, which are non-criminal.
As I suggest above, it may be a Fourth Amendment problem, but it is complicated by the fact that the Constitution gives the feds the power to arrest and expel people for immigration violations that are non-criminal.
I think your second point is key to why this law is bad. But what your first argues about is key to whether it’s constitutional.
From Article II of the Constitution:
Section one. The executive Power shall be vested in a President of the United States of America. {major snippage}
*
Section three. {material oimitted} * he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
It is the President of the United States who decides to what extent the various laws of the country shall be vigorously enforced. You may recall some noises during the Reagan and G.W. Bush presidenciies about how the environmental laws were not being enforced vigorously enough to suit those complaining. He is the person who decides, ultimately, what the limited human resources available to the country shall be devoted to, and what may be placed as lower priority.
Now, if the precedent is followed that federal action has pre-empted state action in this regard, Arizona faces a Supremacy Clause violation. But further, this particular law removes from the President the right to make that decision (as to how vigorously immigration law shall be pursued), and mandates vigorous enforcement by persons not employed by, commissioned by, or reporting to hum, i.e., the state law enforcement community.
If those who see illegal immigrants as a threat care to hold Mr. Obama’s feet to the fire, with a slogan of “Either change the law or enforce it”, I would not find this challengeable. I might object on the grounds of differing with them on how great a problem it is or is not, or on the philosophical point that we are a nation of immigrants, some in quite extralegal status when they arrived. But those would not be legal bars. This, on the othr hand, is. It is the job of Barack H, Obama, and his predecessors and eventual successors in office, to decide what efforts shall be expended on the execution of which Federal laws, and not that of the Arizona state legislature.