Unless you’ve been hiding under a rock the last few weeks, you have heard about the recent immigration bill (Senate Bill 1070) that the Governor signed into law.  It’s supposed to go into effect sometime in July, but its effects are being felt here in Arizona and across the country. As you may have heard, several groups are organizing boycotts of the state, there are rumors that Major League Baseball will move the 2011 All-Star game out of Phoenix.  More telling is that two Arizona cities, Tucson and Flagstaff, are suing the state over the law and our beloved Phoenix Suns have protested the law by wearing their “Los Suns” jerseys in the NBA playoffs.  

And there are many more such stories.  Sure, my adopted state is taking its lumps, but you know it’s truly rough when you get pilloried by the Colbert Report, the Daily Show, and Saturday Night Live in the same week.  Even better, the Second City comedy troupe is in town and part of their act was a one liner – we love it here because the comedic material all but writes itself.  Oy !

Before talking about the law, let’s be clear about a couple of things. 

• While the drug violence epidemic in Northern Mexico has yet to cross the border, there is significant worry that it will.
• The federal government has let the problems with the border fester for years, which has enabled us to reach this crisis.  This is particularly so since President Bush’s failed reform effort in 2007
• Illegal immigration genuinely is a complex problem encompassing issues related to economics, law enforcement, labor, families, drug policy, gun control, politics, and international relations among others.

In a rare move, the front page of Sunday’s Arizona Republic featured an editorial making some blunt statements

The federal government is abdicating its duty on the border.  Arizona politicians are pandering to public fear.  The result is a state law that intimidates Latinos while doing nothing to curb illegal immigration.

And, it hit all of the state’s major political players, including Janet Napolitano, Senator McCain, Senator Kyl, and Governor Brewer, among others, very hard.  I think the editorial was dead-on.

As for the piece of legislation, it says after “a lawful stop, detention, or arrest” the law enforcement officer shall make a reasonable attempt to determine the immigration status of the person “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States[.]”  The statute was recently amended to explicitly state that the law enforcement officer “may not consider race, color, or national origin in the enforcement of this section” except as permitted under the Arizona and US Constitutions. 

I have a difficult time understanding how law enforcement is supposed to determine whether “reasonable suspicion” exists without racial profiling.  This law was written to keep undocumented Latino immigrants out of Arizona.  If a subset of Latinos “are the problem” in the legislature’s eyes, how can we expect law enforcement officers not to target Latinos when enforcing the law?  And if they do that are they not racial profiling?  And isn’t that violating the law as written?  Sounds like a classic Catch-22 situation.

This is an important question, particularly knowing Arizona’s history.  The late Supreme Court Justice William H. Rehnquist (an Arizonan) was widely known to take part in Latino voter intimidation efforts , and currently, our Sheriff and County Attorney (who is likely to be our next Attorney General) have conducted several “crime sweeps” (see here and here) in Latino areas to catch undocumented aliens and to intimidate the sizeable Latino community.  While claims of asking for the papers of those found to be “breathing while Latino” may be over-the-top, there is a legitimate fear of abuse.  After July, when the law goes into effect, we have to keep track of things that might serve as proxies for racial profiling.  One example might be the number of Latinos who get pulled over for very minor violations – an illegal lane change, for instance.

Despite my lack of expertise in the area of immigration law, my prediction has always been that this law will go nowhere fast.  Immigration is a federal issue, not an issue for the individual states.  The Constitution’s Supremacy Clause requires judges to favor federal law over contrary state law, state law that attempts to take the place of federal law.  Thus, federal preemption will be a legitimate reason for an injunction to issue that keeps the law from being implemented, and federal preemption will be the basis for striking that part of the law down.  I feel more confident in this prediction after reading that constitutional law expert Erwin Chemerinsky has made a similar argument.

To be clear, I understand that immigration is a big problem, and I look forward to the feds getting their act together and finally addressing the issue.  I just think this law is short-sighted, mean spirited, bad for Arizona’s economy, and unconstitutional.