Why Arizona’s New Immigration Law Sucks (Legally Speaking)

April 30, 2010 at 5:19 pm (Immigration, Uncategorized) (Arizona, Carlos Santana, civil rights, discrimination, Fourth Amendment, illegal immigrants, immigration law, immigration reform, Jan Brewer, John Cornyn, Karl Rove, Lindsey Graham, Rick Perry, SB 1070, unconstitutional)

So tomorrow is a national day of protest against Arizona’s stupid-ass new law, with dozens of cities scheduled to participate. Our local event out here in Texas is scheduled to be held right in front of Republican Party headquarters. For a split-second, I actually considered going to the protest dressed in a suit, lying and telling a reporter that I was a young Republican who wanted to comment about the protest, and then launching into reasons the bill was stupid.

But then I realized there actually *is* Republican opposition to this bill. A *lot* of it: Lindsey Graham, John Cornyn, Rick Perry, Darth Vader Karl Rove. And Shakira (but she’s not Republican. She’s just hot.) So that wouldn’t be as meta-funny as I would have liked it to be.

Instead, I decided to do something a little bit different. Unlike a lot of the so-called “journalists” reporting on this issues, I sat down and read the bill. You can read it too, it’s available online. The new part is in blue. While the obvious issue of racial profiling has been discussed ad naseum, I feel there are other elements of the bill that haven’t been talked about yet but that should be equally concerning.

I’ve identified six reasons why I object to this law. If you are really interested in why this law sucks, read more after the break.

(DISCLAIMER: I’m not a lawyer, nor am I a law student yet. I’ve never taken a law course. But I can read. So…yeah. *cricket* If anyone sees any errors in this, let me know, so that I can correct them. Also, I refrained from over-sourcing the law, but if people actually want to know where I pulled these things out of, I can go back and name them section by section. I posted a link to the law, so you all can read it for yourselves.)

IMMIGRATION LAW IS THE PURVIEW OF THE FEDERAL GOVERNMENT AND THE FEDERAL GOVERNMENT ALONE; MUCH OF THE LAW IS PRE-EMPTED

Under Article I, Section 8 of the Constitution, the Founding Fathers explicitly gave the power to regulate immigration to the federal government. Does that mean that local police officers cannot arrest people on immigration charges? Not necessarily – police *can* in some instances arrest people on federal crimes in order to assist a federal agency. This applies to immigration law under the controversial Section 287(g) of the Immigration and Nationality Act.

However, the intent of this law, as made clear by lawmakers goes far beyond merely arresting immigrants to assist ICE in its duties. This law intends for Arizona to try and create its own immigration system in addition to the federal system, because the federal system isn’t working the way they’d like it to. For instance, the new law sets up a fund for the Gang and Immigration Intelligence Team Enforcement Mission, codenamed GIITEM. (Like “git ’em.” See what they did there? Totally not racist…) GIITEM’s purpose, other than to get people to rat out their neighbors, is “addressing the crime and violence related to illegal immigration within the State of Arizona” because enforcing immigration law “is no longer merely a federal responsibility.”

Umm….yes it is. That’s a constitutional no-no. As pointed out by MALDEF’s general counsel, “the power to regulate immigration is ‘unquestionably exclusively a federal power’ and any attempt  by the State to regulate to prescence of immigrants within Arizona is unconstitutional.” (Click the link if you want case law. I won’t bore you all with it, unless you really want it.) Also, states have no power to regulate their international borders. That’s also relegated to the federal government (Article I, Section 4). Besides, we’ve rejected that idea that states are equivalent in status to the federal government twice in American history: first, when we dumped the Articles of Confederation, and second, when the North won the Civil War.

Any judge with even a basic understanding of constitutional law would crap all over this law and overturn it. If Governor Brewer doesn’t like the way the federal government is running things, tough cookies. She can try to get the state legislatures of 34 states to agree to hold a convention to amend the Constitution and then try to convince people to change the Founding Fathers’ words, which is kind of lame (most conventions are). Or, she can be a good trooper and vote for her state’s senators and representatives like the rest of us. One citizen. One vote.

UPDATE: On a second read of this law, the “Trespassing by illegal aliens” section is clearly an attempt to make immigration offenses into a state crime. More evidence Arizona is trying to subvert the federal government.

THE LAW HAS NO DEFINITION OF WHAT CONSTITUTES “REASONABLE SUSPICION,” MEANING THAT A BUNCH OF PEOPLE HAVE TO BE ARRESTED AND SUE BEFORE THE COURTS DECIDE WHAT IT MEANS

UPDATE: CNN announced late last night that Governor Brewer signed a change to the law clarifying that an officer has to initiate legal contact before coming to the reasonable suspicion that you are illegal. Not sure if that’s true, I’ll have to read the law, but I wanted to clarify that point because I’d been getting questions.

The law allows a police officer to inquire about immigration status provided he or she has “reasonable suspicion” that whoever they pulled over for forgetting to use a blinker is an illegal immigrant. So what’s “reasonably suspicious”? Don’t ask the governor, she has no clue. What about the cops? Nope. In fact, no one will have a clue what constitutes “reasonable suspicion” until a bunch of people get arrested and the courts decide. This is a Fourth Amendment, “unreasonable search and seizure” disaster waiting to happen. What’s more, under the law “[a] law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.”

Again, warrantless arrests are a huge constitutional no-no. The language of this law is also ambiguous. It doesn’t say that a person has to actually be an alien — it just says a person can be arrested without a warrant if the officer thinks he’s an alien and that he’s committed an offense that he could be deported for. That’s virtually anything that a person could be arrested for in the first place, from prostitution to being a World War II Nazi persecutor to commiting a “crime of moral turpitude”. This just gets rid of the pesky warrant. More Fourth Amendment problems coming from sloppy law. God willing, the courts strike that down.

CHANGES DO NOTHING TO PUNISH EMPLOYERS WHO HIRE UNDOCUMENTED WORKERS; IN FACT, IT ONLY PROVIDES EMPLOYERS WITH AN EXTRA DEFENSE UNDER THE GUISE OF “ENTRAPMENT”

News reports have been suggesting that the new law is tough on “those who hire illegal immigrant laborers.” This is incredibly misleading. All it does it make it crime to hire immigrants from your car or transport them in your car. For instance, if you decide to hire a Mexican you see on the side of your road to do your garden, that’s a crime. However, when it comes to actual employers like restaurants or manufacturers, the law doesn’t really change anything. It makes it illegal for an undocumented worker to seek employment, which is not only already illegal, but still keeps the impetus of guilt on the worker and not the employer.

In fact, the only relevant changes to the law concerning employers who hire immigrants illegally actually involves giving them an out: claiming “entrapment” by law enforcement personnel.

The new law allows employers to dodge charges by saying the police set them up and that they would never, ever, swear on baby Jesus hire an illegal. How does the Court confirm this? By the employer’s own testimony and “the conduct of the law enforcement officers.” This loophole is so big you could drive a truck full of Mexicans through it. I’d say it’s sloppy law, but it’s deliberately been put in to give employers a way out while trying to allay critics who (rightly) put the blame on employers who hire illegal immigrants. Real teeth on this law would involve steep fines for people who hire illegal immigrants — but who don’t do it from out of their car.

UPDATE: Okay, I’ve been getting questions on what constitutes “entrapment” under this law. Like the insanity defense, this is an affirmative defense, meaning you basically admit to the crime, but if you prove that you meet certain criteria, you’re off the hook. To prove entrapment, you must have clear and convincing evidence that 1) the idea of committing the violation started with the police and not the employer, 2) that the police urged or induced the employer to violate the law, and 3) the employer would not have hired an illegal immigrant before the incident.

He establishes these facts by his own testimony. A judge can also consider “the conduct of the law enforcement officers…in determining if an employer has proven entrapment.” Strikes me as kind of a weird thing to put in a law if you’re talking about “cracking down” on employers.

ARIZONA POLICE MAY SEIZE YOUR CAR IF YOU ARE HARBORING AN ALIEN

Did you know that under this law, the state of Arizona can seize your property? It’s true. If you are caught transporting an alien, the police can impound your car. Yes. We’re putting people who get caught taking a sick immigrant to the hospital on the same moral ground as drunk drivers. Barring more “unreasonable seizure” questions and the disturbing precedent of allowing the state government to literally steal your car, my concern with this part of the law is over-broadness and lack of specificity.

For instance, it doesn’t specify that you have to be transporting an immigrant that’s currently out of status. It’s a prohibition on anyone who has ever entered the United States illegally. So if you transport someone who “has entered…the United States in violation of law,” you get your car taken away.

The problem with this is that there are many examples of people who enter illegally into the United States who do eventually end up getting legal status. A very small number of people who qualify for cancellation of removal could obtain legal status after having entered illegally. Asylum seekers are another group that jumps out at me. Oftentimes, people fleeing from torture and persecution cannot otherwise obtain entry into the U.S. due to a constrained number of visas. Some are forced to cross illegally because they have no legal means to avail themselves for protection. Those who have claims do get legal status, but it would seem that under the law, anyone driving them around would have their vehicle impounded.

Focus should be on an alien’s status at this point in time, not their status in the past. This is just bad policy.

PRIVATE INDIVIDUALS MAY SUE INDIVIDUAL CIVIC LEADERS OR STATE AGENCIES…AND THE STATE HAS TO PICK UP THE BILL

From the same party that brought you tort reform in an effort to cut down on frivolous lawsuits comes – a new way for people to file frivolous lawsuits! Yay! The message being sent here is that it’s not okay to sue your doctor for leaving his Rolex in your abdomen but it *is* okay for you to sue your leaders for not doing enough to keep Mexicans away from you.

This allow allows private citizens to sue either government leaders or government agencies if they think they’re not doing a good enough job enforcing immigration law. This is bad law not only because it burdens leaders with the threat of dumb lawsuits, it also incentivizes dumb lawsuits. Anyone who wins a lawsuit under this law gets to have their legal bills paid for — by the state. Even if they lose, the state has to pay to defend itself.  Either way, this is an incredible waste of taxpayer money, and I’m surprised conservatives would even propose this. No one wins in this situation. Except the lawyers…

…remind me to take the Arizona bar when I graduate.

UPDATE: After re-reading the bill, I found out that in the event the state wins a lawsuit, all the money it wins goes into the GIITEM fund. Clever. So basically, the more frivolous lawsuits people file, the more money their “intelligence unit” get. That explains why they’d do this in the first place.

FINALLY…IT’S JUST NOT NICE

And by nice I mean “it’s going to screw you over among Hispanics.” People are already callling for a nationwide boycott of Arizona. Protests are sprouting up everywhere. And the fact is, Hispanics, Mexican-Americans in particular, are mad as hell about this law. I don’t care if CNN runs pieces about “some Hispanic Americans” who think that the law is great. This quote from those Hispanics is gold and explains a lot behind this entire movement’s mindset:

But Schwartz and some other Americans with Hispanic backgrounds who spoke with CNN say the problem with illegal immigrants isn’t just the jobs they take. It’s how they’re overrunning towns like Phoenix, turning them into “mini-Mexicos” with their trash-filled streets and loud music, according to Schwartz.

Sorry, but when I read that, the first thing I thought of was the music video to Smooth by Carlos Santana:

How can you hate that? Even Rob Thomas likes it, and he’s wearing a cowboy hat. That’s a *metaphor*. Mexicans aren’t *all* bad.

In conclusion, this law sucks because it is 1) unconstitutional, 2) bad policy, 3) racist, 4) a burden on taxpayers, 5) used to seize private property without just cause, and it 6) attempts to subvert the Santana-fication of the United States.

I will now take your anger.