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The Right to be Wrong

The Arizona law appears to be ‘facially unconstitutional. States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.
Professor Karl M. Manheim, Loyola Law School of Los Angeles

It may seem a bit curious to argue that a state is interfering with federal policy by rounding up too many violators, unless the policy is non-enforcement.
Law Professor Jonathan Turley, George Washington University

The prevailing opinion being heard is that Arizona’s new immigration law (SB1070) will be found unconstitutional. The two theories presented as most likely to bring the court to that conclusion:

  1. Allowing police to demand proof of residency from anyone they reasonably suspect of being here illegally, is racial profiling, which is illegal.
  2. Legislating on immigration is a federal responsibility and this law amounts to Arizona establishing foreign policy, which is illegal.

Allowable Error, an editorial in today’s Chicago Tribune challenges both notions, concluding that ‘while Arizona’s purported remedy for its illegal immigration dilemma is clumsy and dangerous, it’s not beyond the reasonable scope of state authority.’

On the racial profiling issue the Tribune Editorial says, “courts are not likely to block implementation of the law on the theory that it’s impossible to enforce without racial profiling. They would need evidence compiled after the law has gone into effect.”  Since the law prohibits racial profiling it makes sense that the unconstitutional case could only be made after seeing it applied in the real world. Then it seems just as likely that any examples of police misapplication of the law will be seen as individual violations of constitutional protection rather than grounds to throw out the entire law.

On the foreign policy argument the Trib reminds that all Arizona is doing “is shoring up enforcement of laws enacted by the federal government.” Since the new Arizona law mirrors federal law  ( 8 USC Title 8 ) and makes violating federal immigration law into a state crime, the law is designed to avoid the legal pitfall of “pre-emption,” which means a state can’t adopt laws that conflict with federal laws.  It also makes it harder to argue that Arizona is interfering with U.S. foreign policy, let alone setting its own.

Lawsuits have already been filed and time will tell how the courts will rule, but there is good reason to believe the law could survive the constitutional challenge.


Add a Comment
  1. I have mixed emotions about this law. Having said that, it seems to me that if the police were to make the inquiry about citizenship INCIDENT to a lawful arrest, then that would remove any issue of profiling. Are the police not required to offer to contact the consulate of any foreign national under arrest? If the police are REQUIRED to inquire in order to protect one’s rights then they ought to be ALLOWED to inquire in order to enforce a law.

  2. You make a good point, Kim. I have not heard the Consular Notification Law mentioned in this debate before – but it has certainly not changed as a result of the AZ law and it sure seems relevant:

    From the U.S. State Department:

    Steps to Follow When a Foreign National is Arrested or Detained:
    1. Determine the foreign national’s country, they must be advised of the right to have their consular officials notified.
    2. In some cases, the nearest consular officials must be notified of the arrest or detention of a foreign national, regardless of the national’s wishes.

  3. Your commentary on Arizona’s new law is level-headed, rational, calm, and collected. This is a very pleasant contrast to most of what I hear. I thank you very much for your just-the-facts approach.

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