Preliminary Thoughts on the Arizona Immigration Law

If you’ve been watching, reading, or listening to any news reports over the last week, you probably know that the Arizona legislature has passed, and the Governor has signed, a law designed to crack down on illegal immigration. Reactions have been varied, to say the least. Many conservative commentators have praised the law, with many libertarians and liberals decrying it. The government of Mexico has gone so far as to issue a travel advisory to its citizens in Arizona. Why all the controversy?

Essentially, the law makes it a crime to be an illegal immigrant in Arizona, separate from the federal crime that already exists to prohibit the same conduct. One of the most controversial provisions in the law is that, once a police officer suspects a person of being an illegal immigrant, they will have to present proof that they are in the United States legally.

Obviously, this provision raises some serious constitutional and moral questions. To many, it appears to be a license for racial profiling, and treats some people as guilty until proven innocent. According to many others, it’s just a minor inconvenience, and anyone who is in the U.S. legally will have nothing to fear.

We can bet that many, many people who are detained under this law will challenge its constitutionality, likely on due process and equal protection grounds, especially if, some time after the law is put into effect, the claimants will be able to produce evidence that it has led to an increase in racial profiling. The law might also face another court challenge, on completely different grounds: a challenge from the U.S. government, arguing that the state of Arizona is attempting to play in the federal government’s constitutionally-guaranteed domain.

Under the U.S. Constitution, Congress has essentially plenary (unlimited) power when it comes to immigration law. And under the constitution, federal laws (assuming they’re constitutional) are the supreme law of the land, and override any and all conflicting state laws. Courts have, in the past, held that only the federal government has the power to determine that somebody is in the country illegally. Of course, supporters of the law will likely argue that it simply fills a gap in federal law, created by federal inaction in enforcing immigration law. Furthermore, the law doesn’t actually create any new requirements for legal residence in Arizona beyond the requirements for being in the U.S. legally; it essentially criminalizes under state law the exact same conduct which was already illegal under federal law.

This argument makes some sense, but it doesn’t change the fact that anyone charged under the law will be tried in Arizona court, which will necessarily require a state court to determine if a person is in the U.S. legally or illegally.

Furthermore, the federal government could also argue that the state of Arizona, in enacting this law, is attempting to make foreign policy, which is also the exclusive province of the federal government.

It’s difficult to tell if this law will pass constitutional muster if it is challenged on federalism grounds. However, depending on how judiciously the law is enforced, it could quite easily be overturned on due process or equal protection grounds, at least as applied in certain situations.

The fact that there are so many obvious routes to challenge this law certainly increases the chances that it will be found unconstitutional, at least in part.

Furthermore, many organizations are calling for boycotts of many of Arizona’s key industries. It’s entirely possible that this law was passed with (at least in part) the intention of drawing national attention to the issue of illegal immigration. If that’s the case, it has been a resounding success, and hasn’t even gone into effect.

Now, the issue of illegal immigration is very serious. I personally believe the U.S. immigration system is kind of a mess. I also believe that, in general, it should be easier for people to come to this country legally. After all, Americans should be proud that so many people from around the world want to come here.

On the other hand, I also believe people should obey the law. Coming into the U.S. illegally is hardly the worst crime a person can commit, but it nonetheless puts a strain on state and federal law enforcement agencies, and cheapens the efforts of immigrants who came here legally, and followed the rules (even if I believe those rules are in need of a drastic overhaul to make them simpler and less restrictive).

The issue of immigration certainly inflames the passions of all sides of the debate, and it’s going to be interesting to see how the effects of this law pan out.

One thing I can say for certain is that LegalMatch case data from the last few weeks does not indicate a significant increase in immigration cases coming out of Arizona. This makes sense, as the law is not set to take effect until 90 days after its passage. However, I expect that we will see more of these cases coming out of Arizona in the future.