Should They and Can They? The Dichotomy of SB 1070

If you’ve opened up a newspaper, turned on the TV., the radio or surfed the web you must have heard about the faux controversy over the law passed by the Arizona State legislature.  I say "faux controversy" because much of the arguments coming from the left with respect to policy are empty and the legal arguments aren’t as clear-cut as they’d like to state.  On April 28th, 2010, Jonathan Cooper and Amanda Myers noted in the Associated Press that Arizona wasn’t out looking for trouble, but rather “[this] frustration had been building for years in Arizona with every drug-related kidnapping, every home invasion, every “safe house” discovered crammed with illegal immigrants from Mexico.”

Therefore, it’s self-evident that it was time the state of Arizona drew the line.  State Senator Russell Pearce summed it up stating, “[t]he public wants something done.  They’re tired of it…They’ve seen the ineptness and the malfeasance on the part of the [federal] government, and they’re frustrated.”

By the numbers: According to the Associated Press Arizona has an estimated 460,000 illegal immigrants making it the largest gateway for illegal immigrants into the United States.  Additionally, Border Patrol agents over the last three years have made 990,000 arrests of illegals crossing the border into Arizona, an average of 900 a day that totals 45 percent of all arrests of illegals along U.S. borders.  Furthermore, authorities will often find safe houses and vehicles packed like the VW Bug on college campuses in the 70’s (perhaps this is why those on the left have no desire to stop it).

Moreover, federal agents have seized 1.2 million pounds of marijuana last year in Arizona.  Federal prosecutors have declined to press charges against marijuana smugglers caught with less than 500 pounds in Arizona because these busts have become so common.  Most important to the health and safety of the state is the risk of kidnappings.  The city of Phoenix has become the kidnapping capital of the United States with drug and human trafficking as a pre-text to extortion.  Estimates show kidnappings in Phoenix to be as high as one a day in recent years, some resulting in torture and death.  Based on the circumstances the debate over SB 1070 cannot reasonably be based upon whether or not Arizona should have passed such a law, but rather do they have the power to do so?

Although the left wants to characterize the law Governor Jan Brewer passed as anti-immigration, it is not.  It is anti-illegal immigration.  However, constitutional challenges have arisen and will continue to bombard SB 1070 with claims of violations of the 14th amendment, supremacy and federal preemption.  But, many of these challenges have come before the proposed amendments under HB 2162.  On its face HB 2162 resolves most potential constitutional challenges, but leaves room for debate over preemption issues.

Attorney General John Ashcroft’s chief adviser on immigration law and border security from 2001 to 2003, Kris Kobach wrote in The New York Times on April 29th 2010 that Arizona had to draw the line and the arguments we are hearing against SB 1070 either misrepresent the text or are inaccurate.  Given recent statements by President Obama, Attorney General Eric Holder, DHS Secretary Janet Napolitano, White House Chief propagandist Robert Gibbs, and many others who haven’t read the law, it’s hard to give an accurate opinion and perhaps this article will help.  Before addressing preemption issues there are several other claims to be addressed: it is unfair to demand that aliens carry their documents, the term “reasonable suspicion” will allow police to act inappropriately, and the law will result in racial profiling.

Since 1940 it has been a federal crime (a misdemeanor), for aliens to fail to keep registration documents with them.  The Arizona law merely adds a state penalty to what was already a federal crime.  Having been fortunate in my own life to travel I know that this is not an unreasonable request.  Every nation I have been to required similar documentation.  With respect to the term “reasonable suspicion”, SB 1070 did not invent this as a legal concept.  There is ample precedent listing the factors that satisfy the reasonable suspicion requirements and when several are combined the courts used a totality of the circumstances test.  Furthermore, the law will not result in the type of rampant racial profiling the left is screaming about.

If racial profiling is proven, 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 (all 4th amendment protections against profiling continue to apply).  However, HB 2162 would remove the term “solely” from the provision, and defers judgments on immigration status and removal back to the Federal authorities as soon as practicable when they suspect a person is an illegal.  The underlying problem with the law appears to be that those on the left have a general distrust of law enforcement officials.

Most importantly, does SB 1070 violate the Supremacy Clause of the U.S. Constitution?  Claims are being made that it may in at least two ways.  The first is that Title 8 U.S.C. governs the treatments of aliens and Congress enacted Title 8 pursuant its plenary powers under Article I, Section 8 of the Constitution.  Under Article I, Section 8, Congress has the power to “establish a uniform rule of Naturalization…throughout the United States.”  Here, there is a federal scheme, arguably reflecting Congress’s desire to completely occupy the field of immigration and naturalization, which it historically has done.  If preemption isn’t found based on those facts, it is also argued that SB 1070 may fall under conflict preemption because 8 U.S.C. 1252c provides a place for state and local authorities.

The complexity of the legal debate arises from the intersection of state and national legislatures.  State and local governments have general police powers, the responsibility for the health and safety within their borders, including but not limited to criminal law, employment law, and welfare.  Conversely, immigration law has evolved from foreign policy and now is a part of the aforementioned national legislative and regulatory scheme.  As a result of immigration laws beginning to infuse with the spheres of power reserved to state and local governments, we must begin to recognize an expansion of state and local control over immigration and characterize immigration as a domestic issue.  Consequently, state and local governments will have more power than they have had traditionally, but they will have concurrent power with the federal government.

Therefore, this debate will end with differing results depending upon how the courts perceive immigration as a foreign policy issue, thus narrowing local regulation, or as state and local governments acting within their traditional spheres of power.  Professor Juliet Stumpf of Lewis & Clark Law School refers to this as the criminalization of immigration law, or crimmigration.  In a 2008 North Carolina Law Review, Professor Stumpf stated, “[t]he rise of crimmigration law has transformed immigration law from something the federal government is uniquely positioned to control – foreign policy – to something states are experts in – law enforcement.”  With only 6,000 federal Immigration and Customs Enforcement agents (ICE), their job is insurmountable in comparison to a country containing between 12 and 20 million illegal immigrants.

By contrast, the New York Police Department currently has 35 thousand employees and believes it is greatly understaffed to deal with 8 million total residents in a much more compact area.  As a result illegal immigrants are willing to take their chances, with these odds why not?  According to an article in the Washington Examiner on May 5th, 2010, Heather MacDonald claims that if Arizona law were followed by many other states, there would be approximately 650,000 state and local police officers in the U.S. who would vastly disrupt the status quo.  Additionally, MacDonald believes that Arizona’s law is hated because of its’ potential effectiveness.

Although President Obama authorized 1,200 national guard troops to be sent to the border a few weeks ago, which is a good start, laws like SB 1070 are necessary if only to get Washington to finally enforce the laws already on the books.  I tend to agree with MacDonald and believe the reason this law is so opposed is that it just might work.  Before all is said and done we may see a Corona Summit in Arizona.