I realized a few days ago that I had been discussing the AZ immigration legislation without having really looked into what the bill says. I decided to do research to find out more. I'm attaching below a very informative academic article from Univ. of Ariz. and ASU professors. Some interesting points I took from this article:
Much of the law is actually constitutional because the text of the Arizona statute criminalizes already federal crimes.
A major change is that the statute makes federal law into state law. This means the law can be enforced in state courts. Currently, the federal government doesn't enforce many low-level immigration violations. Arizona's law requires enforcement. That means the state courts will be enforcing these immigration laws when the federal government would have declined to do as much. This leads to preemption issues.
If you read the article, you'll see that no one is really sure what will happen with this law. Much depends on how Arizona decides to interpret and enforce the statute.
I'm also including a link to the actual text of the bill.
Law professor article
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617440
Click on "one-click download"
Text of bill
http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf
On a lighter note, it looks like we have some political "smack-talk" from the AZ governor.
Arizona Governor to Obama Administration: Bring It On
Arizona Governor Jan Brewer and President Obama will meet later in the week to discuss Arizona's latest immigration law. Brewer denies any fear over a legal challenge to the law by the administration, crowing that she has "a pretty good record of winning in court" -- an apparent reference to a victory in the Ninth Circuit in the Arizona employer sanctions case for which a cert petition is pending in the Supreme Court.
http://lawprofessors.typepad.com/immigration/2010/06/arizona-governor-to-obama-administration-bring-it-on.html
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As I learned from a source in immigration enforcement: The law doesn't really do all that much- If a police office suspects an individual of being an illegal immigrant, they would call the Border Patrol, and if they didn't show up in like 15 minutes, they'd let them go. Now they can hold them over night until the Border Patrol comes. That's the main part of the law. But my source says that in general the law is bad because local law enforcement is not equipped to deal with these issues.
ReplyDeleteThe real villains are members of Congress and the President. None of them are making this a priority, even though the answer is clear.
I recommend that you read the following about it: http://www.signonsandiego.com/news/2010/jun/06/defenders-of-az-law-a-rebuttal/
ReplyDeleteIt ain't easy to say what the law really is. That's why Congress should act.
I like this article, Chad. The only thing I might disagree with the author on is racial profiling. Contrary to what you might think, it is legal for border patrol agents to use race as a factor for reasonable suspicion and probable cause. So AZ police officers wouldn't necessarily be breaking the law by racial profiling according to federal law. I think there's a greater likelihood that they are preempted by federal law, however.
ReplyDeleteRacial profiling is a poor strategy. I have it on good source that Border Patrol agents use articulable facts, such as dress. Ask any woman, and I think she'd agree: you can tell a lot by a man or woman's shoes.
ReplyDeleteI definitely agree that racial profiling is a poor strategy. I was just pointing out that it is, in some respects, legal. The seminal Supreme Court case on the matter is United States v. Brignoni-Ponce, 422 U.S. 873, 885-87.
ReplyDeleteIt states in relevant part that, "In this case, the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry
of the occupants. [Footnote 11] We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best, the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and, even in the border area, a relatively small proportion of them are aliens. [Footnote 12] The likelihood that any given
person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but, standing alone, it does not justify stopping all Mexican-Americans to ask if they are aliens."
So racial profiling is not acceptable standing on its own. However, border patrol agents can use ethnicity along with appearance and dress in articulating reasonable suspicion and probable cause.