Is the Arizona illegal immigration bill constitutional?

Question

This isn't a snarky comment, I honestly do not see how a police officer can develop a reasonable suspicion of someone being an illegal in a constitutional manner.

Answer 1

There's nothing in the constitution that prohibits an officer from using his gut sense.

Answer 2

The constitutionality of this law will be challenged shortly, several parties have already announced their intentions to do just that. Whether they will succeed is another matter. I think that one of the most thorough answers on this question was given by jrperez, yet his/her conclusions seem simplistic. I will address the points:



1. Preemption: There are many instances of local and state law enforcement acting on behalf of the federal government in areas where they have limited jurisdiction, but on the immigration issue itself here are excerpts taken from the National Immigration Forum:



"A published 1996 Justice Department Office of Legal Counsel memo states that local police have the authority to arrest persons only for criminal immigration violations. A 2002 unreleased memo from the same office states that police have the authority to make arrests for criminal and civil violations"



There are more examples, but as it stands state and local law enforcement has been given partial, and sometimes full, authority to detain illegal immigrants. Only explicit action by the federal government can make preemption an issue, in my opinion, and so far nothing has happened to that effect.



2. Equal Protection: if the law does indeed lead to violations of equal protection, then it will be unconstitutional, yet we do not know if this is the case. The first thing we must understand is that more than 30% of Arizona's population is of Latino origin, this means that if "reasonable suspicion" is based on race, then the jails and the police stations will get overwhelmed simply from processing the "suspects." This means that police cannot practically use race as a basis for "reasonable suspicion." So the question really is: what will qualify as "reasonable suspicion" under this law? This question is unanswered, despite what many people are saying about this law leading to racial profiling.



3. Due Process: this does not seem to be violated by this law. What constitutes illegal immigration is clear and those who enter or stay in the United States illegally are well aware of the crime they are committing. This does not seem to be a big problem.



In general, the constitutional problem with this law rests on how the state chooses to define "reasonable suspicion." I do not believe that the state CAN (or should) use race as a factor when determining suspicion, simply on the basis that it would completely overwhelm law enforcement in AZ. Being a Latino living in a city with a large Latino population, I can assure you that it would be disastrous to law enforcement if they choose to adopt a policy of racial profiling, in terms of community relations and trust between citizens and police.



If their basis for "reasonable suspicion" is constitutional then so is the law, in my humble opinion (barring some direct action against it by the federal government).

Answer 3

I am a law student. Whether a state bill is constitutional does NOT hinge on whether someone thinks something is "morally right" or even whether it "makes sense"....unfortunately. I would like to address some of the comments first, then the constitutional issues.



First, illegal immigrants DO have protection under the constitution and if you did even a little bit of research you will see that this is true. The Supreme Court says so. They don’t always get “strict scrutiny” protection (google that), but they aren't relegated to the status of an animal (as some people may think). For instance, they get extra constitutional protection in the context of childhood education and public benefits, especially. See the failure of California Proposition 187.



Secondly, as to the comment saying that "there are ways to check if a person is illegal b/c you can always check their documents"...that DOES NOT answer the question. The relevant question is this: What leads an officer to believe that a person is illegal BEFORE they ask a person to present their documentation? The argument is that police officers can't just demand that someone produce identification for no reason at all. When an officer pulls you over and asked for your ID, he/she may ask for your ID because he suspects that you have (for instance) broken a traffic law. Not because he just feels like it. So what (is the question) gives a police officer a "reasonable suspicion" that a person is illegal? An accent? Their field of work? Their race? Their first language? Their country of origin?



Now, to the constitutional question.



1. Preemption: the constitution says that states are not allowed to (1) create laws that are in conflict with express or IMPLIED decisions of the Federal government, Congress (see the Supremacy Clause) and (2) create laws that attempt to govern an area of law that is usually left to states. The argument is that the fed government has itself opted not to enact a law like this, which is a DECISION. Why should a state contradict this decision? Also, immigration law is usually a field of law left to the federal government because of obvious international implications (e.g. our relationship with another country).



2. Equal Protection: The EP clause of the 14th amendment says that all PERSONS (it doesn't say all legal aliens/citizens) are entitled to the equal protection of the law. The Supreme Court says that, where a law has a disparate impact on a particular race, it is subject to strict scrutiny (which means that the law will very likely be invalidated b/c it is scrutinized so heavily). Since most immigrants in Arizona are Latino and the Bill allows for race to be used as a factor in determining whether the person is illegal, there are obvious affects on the Latino community (illegal or legal. Immigrant or citizen).



3.Due Process: under the DP clause of the 14th amendment, no state shall deprive any PERSON (not limited to legal/illegal/alien/citizen) the DP of the law. This basically means that everybody gets a fair chance to be treated fairly under the law (e.g. fair notice of the existence of a law). The argument is: What is “reasonable suspicion” anyway? It’s mush! This phrase is subject to arbitrary and malicious enforcement to the detriment of a discrete and insular minority.



There are other major issues, but those are the biggest. YOU ASKED WHETHER IT WAS CONSTITUTIONAL and (please note) that NOBODY referred to ANY constitutional provision in their answers. I'M NOT SAYING THAT ALL PEOPLE WHO LOOK AT THE ISSUE DIFFERENTLY ARE WRONG, I JUST DISAGREE WITH PEOPLE ANSWERING THIS QUESTION ARMED WITH NOTHING MORE THAN THEIR GENERAL NOTIONS OF WHAT IS WRONG OR RIGHT, NOT GROUNDED IN A CONSTITUTIONAL ANALYSIS.

Answer 4

Despite what the whiners and illegal supporters say, the fact is it is completey constitutional.

When you buy something with a credit card, you many times have to show your valid ID

When you are stopped for a traffic violation or suspicious behaviour...you have to show ID

When you have to prove your age in a bar or when your going to any place that requests positive ID or proof of age, you have to show your ID.



So tell me what is so problematic that if there are signs that a person is in the state illegally, which is a crime according to the Feds.(even if they won't enforce it) why is there this outrage by the stupid to riot against paperwork for illegals ?



The state is going bust, almost every state in the union is paying millions of dollars for illegals to have free here. I know American citizens that don't have it as well as illegals, yet you bleeding heart moron's think a state and a country should put up with people breaking our laws ? There is a thing called legal immigration. These are the people that have decided to break that law. They should be prosecuted if they continue to break the rules of our country with wreckless disregard.

Whether you like it or not, your whining isn't going to change America's laws, it isn't going to gain you sympathy from breaking these laws in Arizona and it should be a law that passes to all other states.

The law is necessary due to 20 million over-running our country. There are too many people in the pool, the late comers messed it up for everyone, now its time to get out of the pool

Answer 5

Yes it is constitutional.



There are ways to suspect a person is not a legal resident of this nation after a police officer makes lawful contact of said individual.



One way is they lack the proper identification to identify themselves as a resident of the U.S. example: drivers license,birth certificate, social security card etc...



Another would be if they failed too show the officer a passport that is not stamped by the border control officers.



A third way is if they showed the officer an expired visa.





Also employers have to check the legal status of an employee by law and failure too do so can result in heavy fines and the loss of their buisness if they hire an illegal immigrant.

Answer 6

he's ~wish~ing that the suited court selection will pass his (and maximum Democrats) way.. From what I heard on ABC radio information purely an hour in the past, we are able to understand on the tip of June. After testifying, Arizona's Governor Jan Brewer says it seems reliable for the regulation to be declared criminal. undergo in techniques the court upheld the hollow area seek regulation for minor offenses too. I consider you that they do no longer seem to be imposing the Federal regulations on the books. There are better than sufficient qualified people to become border patrol brokers (returning Vets!). they only won't hire sufficient people to do the interest perfect! Spend our funds right here. no longer on border patrol interior the middle jap international locations!

Answer 7

It isn't unconstitutional. All states should be doing it. Anyone who thinks it is unconstitutional is probably illegal anyway. Otherwise why would it bother them? My hat is off to Arizona for taking a stand on this!!

I thank the Governor of Arizona for putting American Citizens FIRST!

This IS a National Security Issue, drug issue, and human smuggling!



Conservative Republican Christian†

Answer 8

probably, how about you give us a chance to try the law to see if it works. If it looks like any particular officers are using it as an excuse to violate civil rights, I will join you in trying to get them dismissed from the force

Answer 9

Yes. I realize that roughly 100% of democrats claim otherwise, but it is not unconstitutional to require employers to obey the law.

Answer 10

Yes, it is. It's a mirror of the Federal law. Just because Obama and his socialist crybabies don't like it does not make it unconstitutional.

Answer 11

The bill gives police a legal right to harass anyone in AZ. So i say no. Anyone who thinks police officers there won't abuse this law is completely insane. Police violate innocent peoples rights on a daily basis do a search on google for 'police brutality' and 'police violating civil rights' you will see thousands of video taped incidents

Answer 12

It doesn't have to be constitutional, the illegals don't fall under our constitution. THEY ARE CRIMINALS and nothing else.

Answer 13

No.