Arizona Immigration Legislation (SB 1070) Update

Now that the national furor has died down over Arizona’s immigration law locally known as SB 1070, some rational commentary is starting to come to the fore.  Jack Chin of the University of Arizona has been leading the charge.  He, along with others including my colleague Carissa Hessick, have looked at the various claims the supporters and opponents have been making about the law.  Their white paper on this can be downloaded here

Jack has been blogging about his sensible research into the legislation’s working SB 1070 over at Prawfsblawg are here and here, among others I’ve probably missed. 

According to Jack racial profiling in immigration matters is constitutional (in other words it is ok everywhere in the US), which explicitly contradicts the law’s supporters.  As Jack points out, the law itself says that law enforcement personnel: 

“may not consider race, color or national origin  . . . except to the extent permitted by the United States or Arizona Constitution.” (italics added)  A.R.S. 11-1051(B) (e.g., p. 1, lines 32-36; the language also appears elsewhere, e.g., A.R.S. 13-1509(C), p. 4, lines 1-4).  The exception invokes the Supreme Court holding that “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” in evaluating reasonable suspicion under the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).  Arizona courts agree that “enforcement of immigration laws often involves a relevant consideration of ethnic factors.” State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982). 

In his most recent post at Prawfs, Jack blames the legislation’s author, UMKC law professor Kris Kobach, for creating the confusion of whether SB 1070 prohibits or codifies racial profiling because Kobach is on record saying that SB 1070 prohibits racial profiling without addressing the “as permitted by law” exception (see the fourth paragraph).

Jack was part of a panel discussion organized by the Maricopa County Bar Association discussing what the law means.  Unfortunately I couldn’t go, but his comments to a reporter afterwords indicated a dissapointment that people wanted to believe the law says different things.  In Kobach’s defense, the Supreme Court case Jack mentions concerns the US Border Patrol and activities within 100 miles of the Mexican border, but footnote 7 in State v. Graciano is pretty clear that ethnicity can be part of the calculus.

While all of this discussion of racial profiling has stirred the pot, that’s not what will determine SB 1070’s fate.  The DOJ has filed suit against the state of Arizona (complaint here) seeking to have the law declared unconstitutional, and on Thursday, the Court will have a hearing on the DOJ’s Motion for a Preliminary Injunction .  As I’ve mentioned earlier the question at this time is one of federal preemption (last 2 paragraphs), and the DOJ’s Motion bears this out.  Here’s the first paragraph and first sentence in the second paragraph from the Motion’s Introduction Section:

In our constitutional system, the power to regulate immigration is exclusively vested in the federal government. The immigration framework set forth by Congress and administered by federal agencies reflects a careful and considered balance of national law enforcement, foreign relations, and humanitarian concerns – concerns that belong to the nation as a whole, not a single state. The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.  Although a state may adopt regulations that have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law.

The State of Arizona has crossed this constitutional line.

Thursday will prove to be an interesting day here in Phoenix, and it will be national news when the judge’s ruling comes down.

2 thoughts on “Arizona Immigration Legislation (SB 1070) Update”

  1. It seems that this law is trying to have it both ways by simultaneously prohibiting racial profiling while making racial profiling in actuality much easier to get away with. For example, what about all of the legal mexicans, such as ones who are in the state on an immigrant investor visa? These people will likely be punished by profiling consequences, despite the fact that they carried 10+ jobs on their backs over the border into the US.

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