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Why Court Challenges against Arizona SB1070 law will fail: does it violate 5th and other Amendment rights on immigration
Arizona's new law SB1070 has caused a huge national controversy, even though it is enjoying nation-wide and state-wide support. It is understandable many have fears that the law can be abused, Both President Obama and Mexican President Calderon have expressed their opinion so. In fact, ACLU and others have vowed to challenge it in court, and Obama had ordered the attorney general to take a close look at the AZ law.
It is my opinion that any challenges in court will fail, and I will explain why. However, I must emphasize I am NOT a lawyer or a law student. Thus, these opinions are purely that of a lay person, with some basic understanding of the laws in question. If you do know law and you find some mistakes, please let me know.
How does a court challenge work
In order to challenge a law in court, one must demonstrate that the law in question is in conflict with an existing law, and the conflict must be resolved by the court, who then must rule. The resolution can be a full overturn, or explain that there is no conflict, or anything in between.
The primary approach expected to challenge SB1070 is the preemption argument, which is sometimes known as "Supremacy Clause". American Civil Liberties Union (ACLU) and some constitution law scholars claim that Arizona law is preempted by Federal immigration laws. The US Constitution specified that only Federal government may enact and enforce immigration laws, not the states. Thus, Arizona law is preempted by the Federal laws on immigration.
The secondary approach is the rights argument, specifically 14th Amendment, in that States shall pass no law abridging any citizen or lawful resident of their Federally guaranteed rights. Their argument would be that the normal citizen or legal resident rights are violated by SB1070, and therefore SB1070 must be repealed.
Some cases have also alleged violations of First Amendment, Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and so on. Some have also argued that immigration arrests are the domain of Federal authorities, not state, county, or city law enforcement.
(Thanks to http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/arizona-legal-challenges#cases for listing the cases in question )
News Report of 2008 Federal Court Decision
A federal appeals court on Wednesday (September 2008) upheld an Arizona law that penalizes businesses that knowingly hire illegal immigrants and requires them to verify the employment status of their workers.
The 9th U.S. Circuit Court of Appeals decision rejected a challenge by business and civil-rights groups that contend the law infringes on federal immigration powers.
The law, intended to lessen the economic incentive for immigrants to sneak into the country, imposes civil penalties on employers by suspending or revoking their business licenses when they are found to have knowingly hired illegal immigrants...
Pre-emption Argument Analysis
While there is no argument that Federal Government does "trump" over the State Government when it comes to immigration laws and enforcement. The exact decision was Plyler v. Doe, 457 U.S. 202 (1987). However, the problem with a challenge is SB1070 is written specifically to MATCH, and not go a step beyond, any Federal laws. Therefore, claiming SB1070 is illegal is ridiculous.
Arizona had been to court before over such laws. In 2008, Arizona had successfully argued that their employer sanction law for employing illegal immigrants before both the district court AND the 9th Circuit Court of Appeals, both of which ruled for the state, in that it had exactly mirrored the Federal legislations, and therefore was NOT pre-empted. Keep in mind that 9th Circuit Court of Appeals is one of the most liberal in the country.
And it wasn't the first time. Arizona had ALSO successfully defended its laws in 2000, and 2005, in Federal courts, against anti-illegal-immigrant policies. In 2000, it's for anti-human-smuggling laws, and in 2005, it was for requiring voting rights verification and restricting benefits to illegal immigrants. They triumphed in both cases.
Kris Kobach, the law professor who helped draft the AZ law, specifically wrote it to match the Federal law, to defeat any pre-emption arguments. Thus, any pre-emption argument will fail, as it had before.
Also, the law specifically states that no state officials will be making any determination whether a suspect is an illegal immigrant or not. Only a Federal official, whether on-scene or in contact with the on-scene state/local law enforcement, can determine immigration status. Thus, this will defeat any question of pre-emption, as nobody at the state/local level is making any determination.
In fact, there is a specific law, passed during Clinton years, called 8 USC 1373, that says the Feds *have* to respond to local or state law enforcement request for immigration status verification. (Thanks for columnist Byron York for pointing that out) So the Feds can't even refuse to help on claim of 'high costs'.
Thus, with my amateur analysis, I predict that ACLU and others who plan to challenge the law on basis of Federal law pre-emption, are doomed to failure.
First Amendment Argument Analysis
ACLU's argument that people's first amendment rights are being violated due to SB1070. If you forgot your Bill of Rights, I'll just tell you... it's your "right to free speech".
According to ACLU, because of SB1070, people who do not speak English to full proficiency will be afraid of contacting any law enforcement in Arizona because of the law, as they can be subject to immigration status checks if they initiate such contact. Thus, their free speech rights are being violated as an indirect consequence of SB1070.
As I said before, I am NOT a lawyer, but I personally don't see this argument working, because if they are authorized immigrants, then there would be no problem at all. if they are NOT authorized immigrants, then they are already an offender. It's a bit like a man calling the police to complain that someone robbed him of half of his illegal drugs. Maybe AZ can develop some sort of a guideline where those reporting crimes are not automatically checked for immigration status, but a violation of First Amendment Rights? That's stretching it a bit.
Fourth Amendment Argument Analysis
Another of ACLU's assertions is that AZ SB1070 violates the "no unreasonable search and seizures" provisions in the Fourth Amendment of the US Constitution.
The ACLU argument is problematic in this regard, because the Supreme Court has already defined what are unreasonable. As per "Terry Stop", reasonable suspicion with articulate-able facts leading to the suspicion may be used to justify the stop and question, and that's exactly what's in SB1070 (and as amended by the House bill). Furthermore, Supreme Court have already permitted discretion-less checkpoints.
Furthermore, from the Wikipedia, "A police officer does not have the authority to arrest someone for
refusing to identify himself when he is not suspected of committing a
A search incidental to an arrest that is not permissible under state
law does not violate the Fourth Amendment, if the arresting officer has
probable cause." If a person refuse to provide ID, that person can be detained (but not arrested) until the proper ID has been established, and in fact, the person may be suspected of multiple misdemeanors and Infractions, both Federal and State, for not carrying proper ID. Would that constitute probable cause? Hmmm...
Fifth Amendment Argument Analysis
Fifth Amendment argument from the ACLU main centered on deprivation of "liberty" without due process. Basically, the complaint is about the lack of appeal process for this entire procedure. The individual(s) seized would have been deported before they can even issue a challenge to the legality of their "seizure" (read: detain and arrest).
I personally find this to be a bit... overblown, but then, ACLU is known to be a bunch of rules lawyers, and it is their job. So the question is... is that a matter of STATE law or FEDERAL law to make sure those seized have their day in court, should they choose to challenge the circumstances of their "seizure"?
ACLU is correct that there seems to be no appeal or challenge process in the procedures. Perhaps there should be, but does that make the whole process unconstitutional? I doubt it. Furthermore, all suspects have to go before a Federal judge before being sent back, unless they volunteer to be deported without a trial. In fact, this is already happening in jails across the country. In California, ICE agents are checking county and state jails for illegal immigrants, taking them to face Federal judge upon completion of their sentence.
Permanent resident: if you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.
Fourteenth Amendment Violation Analysis
Fourthteenth Amendment, also known as the "citizenship Amendment", states that no state shall pass laws to reduce ("abridge" in legalese) one's rights, and also all citizens have equal protection, esp. when a certain class of citizen is under-privileged or discriminated, and it does not have to be race, but also gender, age, and so on.
The main problem with this argument is that there is no such right as "right to be not asked about immigration status". It would be an extreme stretch to argue this from "right of privacy". But then, I am not a lawyer.
In fact, it *is* ALREADY ILLEGAL for legal residents to NOT carry their "green card". and legal aliens (i.e. visitors or work visas) to NOT carry their passport and visas. Immigration laws say so. Really.
There may be an argument about "equal protection" where illegal immigrant can ask to be treated the same as a legal immigrant, but since legal immigrant are already asked to produce papers on demand, that doesn't really help. The only confusion is regarding citizens, as there is no law requiring a citizen to prove his or her citizenship on demand.
Local Police Power Argument Analysis
Do non-Federal law enforcement officials actually have the power to question people's immigration status, or to enforce immigration law? There are a lot of unofficial lawyers that say they don't. However, here's some laws and prior decisions you may not have heard about.
In 1983, the US 9th Circuit Court of Appeals (yes, the same one that ruled for Arizona in 2008) in the case Gonzales v. City of Peoria, ruled it is perfectly legal for state enforcement to enforce Federal immigration laws as long as it does not impair Federal efforts to do the same. This was reaffirmed by US District Court of New Jersey in 2008: local police can enforce Federal laws, including immigration, as long as they don't conflict.
In 1984, the US 10th Circuit Court of Appeals ruled that a state trooper has the power to question a suspect regarding his or her immigration status in the case U.S. vs. Salinas-Calderon. The same court reaffirmed its decision in 1999 in the case U.S. vs. Vasquez-Alvarez that the state law officials have the power to arrest for violations of Federal law, as long as such arrests are authorized by state law.
In 2001, the US 8th Circuit Court of Appeals ruled that a defendant's rights were NOT violated when he was questioned regarding his immigration status in U.S. vs. Rodriguez-Arreola, as the question was asked after a lawful stop (for speeding). In 2002, the decision was reaffirmed by US 10th Circuit Court of Appeals, in U.S. v. Favela-Favela. In this case, a state trooper pulled over a vehicle for traffic violation, and noticed there are 20 occupants, so he asked the driver and occupants immigration status questions. Again, the court says it is perfectly legal for state trooper to ask the question, after a lawful stop.
(I must thank attorney Walter Moore for digging up these decisions and precedents. His own blog post is gone though)
Thus, there are FEDERAL precedents that says local police and state police HAVE the authority to enforce Federal laws, including immigration. They have the power to arrest, if authorized by the state. They CAN ask immigration status questions, LONG BEFORE the passage of Arizona's SB1070.
In fact, a law passed by Congress in 1996 specifically granted powers to state police in some states to enforce immigration laws (citation coming soon)
Thus, this argument is going nowhere either.
The two primary arguments against SB0170 are apparently doomed to failure. This just proves that most people did not really study the law BEFORE they formed their opinion about it. Some of the secondary approaches seem to more substantial, but very "tangential" to the problem at hand.
The problem with the AZ SB1070 is not in itself, but in its potential to be abused, but then any law can be abused. Efforts should be spent on coming up with guidelines to prevent abuse of this law, and establish penalties for abuse.
All this lawyering and protest, while attracting a lot of attention, also diverts attention and MONEY from the real problem: immigration reform.AZ will be forced to spend money on MORE lawyers handling all these challenges, when money can be better spent on other things.
Other AZ SB1070 Hubs
- Analysis of Federal Court Decision on AZ SB1070
On July 28th, 2010, Judge Susan Bolton has ruled that certain parts of SB1070 (as amended by HB2162, collectively known as "SB1070") are temporarily enjoined, just before the law was supposed to take...
- SB1070 and Double Jeopardy
On my other SB1070 hubs, a reader, Don, brought up an interesting line of thought. Because Arizona's SB1070 proscribed additional penalties for unauthorized / illegal immigrants/aliens, it subjected them to...
- Arizona Senate Bill 1070: what is it really?
The national controversy about the new Arizona law, SB 1070, which modifies the immigration enforcements of Arizona law, is all over the place. Do you know what it really says and what are the complaints about?
- Racial Profiling and the Arizona SB 1070 Law
Racial profiling: the new Arizona immigration law is accused of doing it. What is racial profiling, are there different types, how it is related to the AZ law, and how can it affect you?
- Immigration Dilemma: should ALL native-born be citizens automatically?
Immigration reform idea: a new class of immigrant? Should there be "provisional residency"? Should native-born children of illegal immigrants be made permanent resident first, citizen later?