Yesterday, I gave a brief history of our American Immigration law. In this post, we’ll talk about the legal aspects of Arizona’s immigration bill (now law) and why I believe it violates several areas of the Constitution. In fact, I could argue the Arizona law violates the Supremacy Clause of the Constitution as well as the 4th and 14th Amendments.
It is a well established legal precedent that the power to regulate immigration is exclusively a federal power. And federal is superior to state law under the Constitution’s Supremacy Clause. However, states are not totally precluded from addressing the illegal immigration issue. For example, a state may refuse to do business with a company that has been found guilty of hiring illegal aliens.
In addition, federal law does allow state and local officials to arrest and detain illegal aliens under the following circumstances. First, under the Antiterrorism and Effective Death Penalty Act (AEDPA) state and local law enforcement can arrest an illegal alien if the illegal alien is present in the United States and has been convicted of a felony and is back in the United States. However, state and local officials can only detain that individual for as long as it takes to get them to federal immigration authorities. In addition, the determination of whether someone is in the United States legally is a federal power, not a state or local one.
And numerous efforts by local governments to enforce immigration laws have been struck down as unconstitutional. For example, in Lozano v. City of Hazleton, the federal court struck down a local Pennsylvania ordinance that punished landlords or employers that were found to rent to or hire illegal immigrants.
Secondly, the Arizona law allows the arrests of illegal immigrants based on reasonable suspicion. Please note, the standard for an arrest is probable cause, a higher legal standard. Reasonable suspicion is not enough. In fact, the arrest based on reasonable suspicion violates the 4th Amendment prohibition against unreasonable search and seizure. Reasonable suspicion is good enough for a stop, but not enough for an arrest.
Thirdly, we all know who is going to be stopped by this law. It is not going to be the student from the Netherlands who attends Arizona State University and has overstayed his visa. It is going to be the Latino who is working on someone’s roof. If he doesn’t have ID, under Arizona law, he’s going to jail. A good friend is from Puerto Rico and is American citizen. He actually has friends in Tempe. If he’s out jogging while out visiting, and has no ID, he can be stopped and because of his thick accent, can be hauled off to jail and having committed no crime. And because this law will like target Latinos and Hispanics, I think I could go to Court and successful argue it violates the 14th Amendment rights to Equal Protection under the law because of its disparate treatment or disparate impact.
As I said in an earlier post, I can understand the frustrations that Arizona citizens must feel when it comes to the immigration issue. But the solution is not at the state level it is to hold federal officials accountable. In Indiana a coalition of small business owners are petitioning Senator Dick Lugar to work for comprehensive reform that not only secures the borders but responsibly deals with the reality of the 9-12 million illegal immigrants who are here.
Tomorrow: How to do meaningful illegal immigration reform.