New Arizona Law

The law is unconstitutional.  It will not stand up to judicial review.
The law is most vulnerable to the argument that it essentially criminalizes "walking
while Hispanic."  We are a nation of laws, and the US constitution is more than a
scrap of paper.

1.  Under the Constitution, federal law is the supreme law of the land and states may not pass laws that seek to overshadow federal statutes.

2.  The law violates the Fourth Amendment which protects people from unlawful search and seizure.  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  A lawful search requires a warrant.  It is unlawful to arrest someone without a warrant, especially on the basis of "suspicion" alone, which is the case with the new Arizona law. The failure to adequately define "reasonable suspicion" means that police officers are given the power to stop people on the street and force them to answer questions. According to the rule of federal law, policemen can detain people only if there are specific and objective facts that suggest criminal activity.  The law seems to require that officers demand documentation from suspected aliens based on mere hunches -- a clear violation of the Constitution.

3.  The 14th Amendment is also compromised in this "law." The amendment clearly states that any person in the jurisdiction of a state, not just citizens, should be protected equally by the laws. Therefore, even though the persons in question are illegal, they shouldn’t be denied rights,
especially the right to privacy.  "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

4. Legislators and experts on the law agree it is unconsitutional.

Senator Lindsey Graham (R) of South Carolina said during a Senate Judiciary Committee hearing that he believes the Arizona law is unconstitutional.

And Karl Manheim of Loyola Law School in Los Angeles and Erwin Chemerinsky of UC Irvine Law agree the law is “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.”

States have long attempted to regulate immigration and in some instances the federal government successfully challenged state laws in court, including in the 1800s, Manheim said.

Arizona's New Immigration Law: Unconstitutional, Bad Policy

By Mary Bauer, SPLC Legal Director  

Arizona’s newly adopted immigration law is brazenly unconstitutional and will undoubtedly trample upon the civil rights of residents caught in its path.

By requiring local law enforcement to arrest a person when there is “reasonable suspicion” that the person is in the country illegally, Arizona lawmakers have created a system that guarantees racial profiling. They also have usurped federal authority by attempting to enforce immigration law.

Quite simply, this law is a civil rights disaster and an insult to American values. No one in our country should be required to produce their “papers” on demand to prove their innocence. What kind of country are we becoming? 

When Arizona Governor Jan Brewer was asked what an undocumented immigrant looks like, she responded: “I do not know what an illegal immigrant looks like. I can tell you that I think there are people in Arizona who assume that they know what an illegal immigrant looks like."

We all know what the outcome of all this double-talk will be. People with brown skin – regardless of whether they are U.S. citizens or legal residents – will be forced to prove their legal status to law enforcement officers time and again. One-third of Arizona’s population – those who are Latino – will be designated as second-class citizens, making anyone with brown skin a suspect even if their families have called Arizona home for generations.

Given the authors of this law, no one should be surprised about its intended targets. The law was drafted by a lawyer for the legal arm of the Federation for American Immigration Reform (FAIR), whose founder has warned of a “Latin onslaught” and complained about Latinos’ alleged low “educability.” FAIR has accepted $1.2 million from the Pioneer Fund, a racist foundation that was set up by Nazi sympathizers to fund studies of eugenics, the science of selective breeding to produce a “better” race. The legislation was sponsored by state Senator Russell Pearce, who once e-mailed an anti-Semitic article from the neo-Nazi National Alliance website to supporters. 

Making matters worse, lawmakers have allowed citizens to sue local law enforcement agencies that they believe are not adequately enforcing the new law. One can be sure that FAIR and its proxies are salivating at the prospects.

The law is not only unconstitutional, it’s bad public policy and will interfere with effective policing in Arizona’s communities. That’s why the legislation was opposed by the Arizona Association of Chiefs of Police. As Latinos grow more fearful of law enforcement, they will be more reluctant to report crimes, and witnesses will be less likely to cooperate with police. Criminals will target the Latino community, confident their victims will keep quiet.

Lawmakers in other states are eager to replicate this ill-advised law. Their frustration with current immigration policy is understandable, but this system must be remedied by our Congress, which should enact fair immigration reform. The federal government must craft a policy that repairs our broken immigration system and, at the same time, protects our most cherished values. States that attempt to follow Arizona’s example will only succeed in sowing fear, discord and intolerance in our communities while undermining law enforcement and inviting costly constitutional challenges.