Thursday, April 29, 2010

That Arizona Immigration Law

Boy, you know that things have gotten crazy when Chris Matthews is is the voice of reason. I think he is right here on all counts. In particular, there's been a lot of nonsense said about the new Arizona law. That's the one that takes the (admittedly extraordinary) step of creating a state offense that mirrors a federal offense -- illegal immigration status -- and empowers state officials to take enforcement steps regarding this new offense (presumably leading to the illegal resident's being turned over to federal officials).

Matthews probably is thinking of the comment by the Roman Catholic Cardinal of LA that the new Arizona immigration law involves "Nazi and Communist" techniques. The ADL agrees that these Nazi comparisons are obnoxious and trivialize the atrocities of the Third Reich. Of course they are right about this, too.

I hate to say anything so boring, but it seems to me this is one of those cases where there are weighty arguments on both sides.

The part of the law that a lot of the screaming is about reads like this: "For any lawful contact made by a law enforcement official or a law enforcement agency…where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person…" That is, representatives of any law enforcement agency can ask people for their papers on the basis of "reasonable suspicion" alone, provided the contact between the agent and the person is otherwise lawful.

Proponents of the bill have pointed out that this does not empower the cops to stop people in order to ask for their documents. The typical case, they say, would be a routine traffic stop over a missing tail light.

The wording seems to me, though, to include any contact that is not illegal, including a conversation on the street, at least if it was initiated by the civilian, who may be seeking help or trying to report an accident or crime. I have read several cases of people who go to the police for help and end up being under suspicion themselves, sometimes with very nasty results. [Update: I've just noticed that, since I wrote this, the bill has been amended to eliminate the broad "lawful contact" language, replacing it with a requirement that the cop asking for papers must be stopping, detaining, or arresting the individual involved on other grounds than immigration status concerns. Presumably, this was intended to eliminate just the sort of overbreadth problem that I am talking about here.]

Again, proponents have pointed out that non-citizens are already required by federal law to carry papers proving their legal right to be here. However, unless America became a police state while I was asleep last night, citizens are not. True, in most states (not quite all) a drivers' license is adequate proof that you are legal, but you are currently not required to carry it when you are not driving. (I often don't.)

Under this law, Arizona citizens are liable to have to interrupt what they are doing and go with a police officer to a place where they can prove that they are not illegals. While it does not saddle them with a new obligation, it does expose them to a new liability to being interfered with and, quite possibly, harassed. This is a big change from the status quo and I don't blame them for being upset.

Then there is the complaint that this law is unconstitutional because federal law preempts state law, and the state of Arizona is violating a fundamental principle of federalism.

I'm not so sure of this one. After all, Arizona is trying to enforce federal law, not undermine it. This dubious measure was only enacted because, due to the feds' refusal or inability to enforce their own laws there are now almost 1/2 million illegals (so far) in Arizona. It seems like the preemption argument has to maintain that, not only does federal law trump state law, but federal incompetence and cowardice does so as well.


The Uncredible Hallq said...

I think what's really troubling about the law is it's unclear what happens to people who are unable to prove that they're in the country legally. Arizona already has a law saying that if police have reason to detain you, they can also demand that you give your name. These laws have been ruled constitutional by the Supreme Court, even if the legal reasoning behind that ruling is a bit dubious.

So: Police decide they have reason to detail a person of Hispanic origin, said person says "I'm a citizen, I don't have my wallet with me, but my name is [common Hispanic name]." The police check the name in the computer in their squad car, a bunch of photos come up, a couple of which look like the person being detained, but the police aren't sure. Then...?

Lester Hunt said...


Hey! I see on Amazon that you've published a book. Cool!

As to the ultimate enforcement steps they are supposed to take, I haven't looked into that, but I assumed it would have to amount to simply handing them over to the feds. I'm sure at any rate states can't deport people.

I was thinking of commenting on the evidentiary standard used here ("reasonable suspicion"), but that turned out to be too long a story. Maybe my next post.

Anonymous said...

I have mixed feelings about this law and I am concerned about the interpretation by police. The Arizona House has redefined 'Lawful contact' to 'Lawful stop, detention or arrest' over concerns of racial profiling and to protect crime victims or witnesses. Unquestionably, this law will lead to abuse of illegals by anyone willing to subjugate. I am not supportive of illegal immigration but I am empathetically inclined toward the children of illegals. Many now are young adults and will face repatriation to a country, without the necessary language skills or cultural finesse to adapt. We will also see a greater enforcement of the federal statute that permits government agents the right to stop and question Americans within 100 miles of the border. This practice may give many Arizonians pause over their 70% approval rating, when they find out, they may not look as born and bred as they thought.

Anonymous said...

I met a couple from New York who retired to Arizona and the woman commented that Arizona resembles a third world country. She also said that Sen McCain did very little to bring home funding for state programs over the years. My conclusion was that they left the state to the forces of free enterprise which is in part responsible for taking advantage of the illegal labor. It looks like the chickens have come to roost and they're worried about them coming into the house but I think the horse is out of the barn.

Lester Hunt said...

Half of America's immigration problem, which in its magnitude is unique in the world, is the situation in Mexico, which is hardly the result of "free enterprise."

Anonymous said...

Lester, "unique in the world". How so?

Lester Hunt said...

I don't have the numbers at my fingertips but I'm pretty sure it is the largest. We have approximately 12 million illegals in the country right now, and I don't think any other country comes close to that. And the reason, as is often said, is that this is the only first world country that shares a border with a third world one (and a country devastated by seven decades of socialism, at that).