Illegal Immigration, Arizona & The Constitution

There are two very good essays on the Constitutionality of the recently passed Arizona law aimed at illegal aliens. The first, from, an attorney who helped to draft the law, Kris Kobach, writing in the NYT:

. . . The arguments we’ve heard against [the Arizona law] 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 don’t have your papers ... you’re going to be harassed,” the president said. “That’s 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. . . .

“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 didn’t 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. . . .

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 Fourth 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 driver’s license. Arizona’s law does not require anyone, alien or otherwise, to carry a driver’s 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. . . .

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 it’s 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. It’s no surprise that Arizona’s police associations favored the bill, along with 70 percent of Arizonans. . .

The second is from Prof. Jacobsen at Legal Insurrection, adding a bit of the nuance to the argument:

There is a fundamental disconnect in the arguments being mounted against the Arizona immigration law. What many of the critics want to say, but do not, is that they view all immigration laws as inherently racist because most illegal immigrants are non-white.

There are some legitimate civil liberties concerns regarding the standard by which police can require someone to produce identification or other information. These concerns are not unique to the Arizona immigration law. Much of the history of our criminal laws is an attempt by the courts to set forth standards for police conduct regarding searches and seizures, and questioning of suspects.

But a point I have made before is that a law which may end up being tossed by the courts on civil liberties grounds does not make the law racist. Issues such as random DWI checkpoints have posed serious legal issues for reasons completely unrelated to race.

That a racially neutral law may be enforced in a racially discriminatory manner also does not make the law, or supporters of the law, racist. Our traffic laws are a prime example.

Police often are accused of singling out minorities for traffic stops based on race, but that does not mean we stop enforcing traffic laws altogether, or accuse proponents of speed limits and stop signs of being racist. Rather, we implement policies which prohibit racial profiling and do our best to enforce such policies.

I realize that this may be too nuanced for some. But the distinction is important because of all the hyperventilated charges that Arizona now is a Nazi, Communist and Apartheid state (quite a combination). . . .

Having reviewed the Arizona law, I will be surprised if it is overturned. The radical left and that portion of the Latino community that quite literally wants to secede are coupling with Democrats seeking the Latino vote to wholly misrepresent both the Arizona law and its purpose. Race cards are flying - and as usual, with no basis in fact.