Arizona's New Immigration Law Is Unconstitutional - Salon

[WillyT]

Arizona's new immigration law is unconstitutional
Not all of it will be thrown out by the courts --
but the most controversial provision has to be.
Here's why...
By James Doty
Monday, Apr 26, 2010 07:01 ET

<snip>

...

The "Support Our Law Enforcement and Safe Neighborhoods Act" (known mainly as SB 1070) requires that police officers determine the immigration status of a person "where reasonable suspicion exists" that the person is in the country illegally. The officer must then verify the suspect's immigration status with the federal government.

As many have noted, the most obvious (and provocative) question raised by this provision is, "What do illegal immigrants look like?" They're probably Hispanic, but so are 30 percent of Arizona's residents. So unless the law authorizes the stopping and questioning of any person who looks darker than the average Caucasian, there needs to be some other criteria that set apart illegal aliens from lawful residents.

But so far, no one has come up with any. When asked what other factors an officer might use to single out an unlawful resident, Brewer replied, "We have to trust our law enforcement."

That's not a constitutionally acceptable answer. For one thing, the Constitution's equal protection clause forbids the government from differentiating between anyone in the United States -- including illegal aliens -- on the basis of race. The new law, on its face, doesn't make racial distinctions, but its supporters haven't articulated any other grounds for suspecting that someone is an unlawful resident. It is, therefore, vulnerable to the argument that it essentially criminalizes walking while Hispanic.

The failure to adequately define "reasonable suspicion" also subjects the law to what might be called the "Papers, please" line of attack. Under the Fourth Amendment, police officers can't simply stop people on the street and force them to answer questions. Instead, policemen can generally detain people only if there are specific and objective facts that suggest criminal activity is afoot.

For many crimes -- say, drug-dealing -- there may well be reliable and concrete factors that would alert an officer to possible illegality. But unlawful presence in the United States is a crime of status. Short of seeing someone sneak over the border, what specific, objective facts would suggest to an officer that a person is in the country unlawfully?

The law seems to require that officers demand documentation from suspected aliens based on mere hunches – a clear violation of the Constitution.

There are other problems. Even assuming that an officer reasonably suspects that a person is in the country illegally, what happens next? The law doesn't specify. If a person -- for example, a park jogger -- lacks what the officer regards as proper identification, is the officer supposed to arrest the person? Or detain him or her while checking the person's immigration status with the federal government? Do Arizonans need to worry about being held in the back of a squad car because they forgot to bring their license with them on a quick trip to the grocery store?

The uncertainty surrounding these questions brings SB 1070 directly into the crosshairs of what's called the "void for vagueness" doctrine, a legal principle that requires a certain specificity in criminal statutes. The Arizona law, in failing to provide clear guidelines either to citizens or officers, creates a risk that policemen will, in the words of the Supreme Court, conduct "standardless sweeps," bound only by "their personal predilections."

None of these legal arguments is bulletproof, and each one in isolation might not be enough to invalidate the "reasonable suspicion" provision. But Constitutional claims often have a synergistic effect, and courts typically do not look kindly on laws that, like SB 1070, cut close to an array of constitutional freedoms. A law that can be, unfairly or not, characterized as sanctioning the widespread questioning and detention of a particular race of people based on vague suspicions is probably not long for the books.

...

<snip>

More: http://www.salon.com/news/immigration/index.html?story=/news/feature/2010/04/26/is_arizona_immigration_law_constitutional

:kick:

[WillyT]

1. Kick !!!

:kick:

[ieoeja]

2. I thought it was unconstitutional because local authorities have no right to enforce federal law? nt

[MrScorpio]

3. There's good reason to think that the law will be struck down by the courts

Only if those judges don't succumb to right wing judicial activism

[WillyT]

4. I'm Wondering If They Planned For That...

Supposedly the law doesn't go into effect for 90 days.

Did they give that cushion of time in order to invite the courts to over-rule???

:shrug:

[jillan]

5. The way they are going to get around it is by charging them with another crime.

Pulling them over for burned out headlight, speeding for going 1 mph over the limit, jaywalking....stuff that is legal to stop someone but is not usually enforced.

That's my opinion, not fact. And I am praying that there is a loophole to stop this insane legislation.

[Nothing Without Hope]

6. not only dark-skinned, but poor. But I bet it doesn't apply to the illegal immigrants

who serve the rich in their homes, gardens, farms and ranches.

Horrible. The true face of the "new" GOP. My guess is that they really don't care if it's struck down in the courts. This was a political gambit, and it will work with the fascists who form the voting base of these soulless hypocrites. When part or all of it is declared unconstitutional in a court, they will scream about liberal activist judges and their brainless followers will just lap it all up, send campaign cash, and polish their guns.