By Kris W. Kobach
LAST Friday Gov. Jan Brewer of Arizona
signed a law SB 1070 that prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes. Less predictably President Obama
declared it misguided" and said the Justice Department would take a look.
It also requires that police officers who in the course of a traffic stop or other law-enforcement action come to a reasonable suspicion" that a person is an illegal alien verify the persons immigration status with the federal government.
Predictably groups that favor relaxed enforcement of immigration laws including the American Civil Liberties Union & the Mexican American Legal Defense and Education Fund insist the law is unconstitutional.
Presumably the government lawyers who do so will actually read the law something its critics dont seem to have done.
The arguments weve heard against it either misrepresent its text or are otherwise inaccurate. As someone who helped draft the statute I will rebut the major criticisms individually:
It is unfair to demand that aliens carry their documents with them. It is true that the Arizona law makes it a misdemeanor for an alien to fail to carry certain documents. Now suddenly if you dont have your papers ... youre going to be harassed" the president said. Thats not the right way to go."
But since 1940 it has been a federal crime for aliens to fail
to keep such registration documents with them.
The Arizona law simply adds a state penalty to what was already a federal crime. Moreover as anyone who has traveled abroad knows other nations have similar documentation requirements.
Reasonable suspicion" is a meaningless term that will permit police misconduct. Over the past four decades federal courts have issued hundreds
of opinions defining those two words. The Arizona law didnt invent the concept:
- Precedents list the factors that can contribute to reasonable suspicion;
- When several are combined the totality of circumstances" that results may create reasonable suspicion that a crime has been committed.
For example the Arizona law is most likely to come into play after a traffic stop. A police officer pulls a minivan over for speeding. A dozen passengers are crammed in. None has identification. The highway is a known alien-smuggling corridor. The driver is acting evasively.
Those factors combine to create reasonable suspicion that the occupants are not in the country legally.
The law will allow police to engage in racial profiling. Actually Section 2 provides that a law enforcement official
may not solely consider race color or national origin" in making any stops or determining immigration status.
In addition all normal 4th Amendment protections against profiling will continue to apply. In fact the Arizona law actually reduces the likelihood of race-based harassment by compelling police officers to contact the federal government as soon as is practicable when they suspect a person is an illegal alien as opposed to letting them make arrests on their own assessment.
It is unfair to demand that people carry a drivers license. Arizonas law does not require anyone alien or otherwise to carry a drivers license. Rather it gives any alien with a license a free pass if his immigration status is in doubt.
Because Arizona allows only lawful residents to obtain licenses an officer must presume that someone who produces one is legally in the country.
State governments arent allowed to get involved in immigration which is a federal matter. While it is true that Washington holds primary authority in immigration the Supreme Court since 1976 has recognized that
states may enact laws to discourage illegal immigration without being pre-empted by federal law.
As long as Congress hasnt expressly forbidden the state law in question the statute doesnt conflict with federal law and Congress has not displaced all state laws from the field it is permitted. Thats why Arizonas 2007 law
making it illegal to knowingly employ unauthorized aliens was sustained by the United States Court of Appeals for the 9th Circuit.
In sum the Arizona law hardly creates a police state. It takes a measured reasonable step to give Arizona police officers another tool when they come into contact with illegal aliens during their normal law enforcement duties.
And its very necessary: Arizona is the ground zero of illegal immigration.
Phoenix is the hub of human smuggling and the kidnapping capital of America with more than 240 incidents reported in 2008.
Its no surprise that
Arizonas police associations favored the bill along with 70 percent of Arizonans.
President Obama and the Beltway crowd feel these problems can be taken care of with comprehensive immigration reform" meaning amnesty and a few other new laws. But we already have plenty of federal immigration laws on the books and the typical illegal alien is guilty of breaking many of them.
What we need is for the executive branch to enforce the laws that we already have.
Unfortunately the Obama administration has scaled back work-site enforcement and otherwise shown it does not consider immigration laws to be a high priority.
Is it any wonder the Arizona Legislature at the front line of
the immigration issue sees things differently?
Kris W. Kobach a law professor at the University of Missouri at Kansas City was Attorney General John Ashcrofts chief adviser on immigration law & border security from 2001 to 2003.
