Editor's Note: In a cruel ironic twist, Republicans and right-wingers who denounce intrusive Big Government when the issue is helping Americans get health care or enacting common-sense gun laws are rallying around a new Arizona law that would have police arrest people if they are caught walking around without proper identification papers, a chilling echo of totalitarian states.
The obvious though unstated distinction between the disdained Big Government and this beloved Big Government is that the target of the Arizona law will be brown people, not white people, a reminder of America's long history of ugly "states' rights" arguments regarding race, as Marjorie Cohn notes in this guest essay:
The conservative "states' rights" mantra sweeping the United States has led to one of the most egregious wrongs in recent U.S. history. New legislation in Arizona requires law enforcement officers to stop everyone whom they have "reasonable suspicion" to believe is an undocumented immigrant and arrest these people if they fail to produce their papers.
What constitutes "reasonable suspicion"? When asked what an undocumented person looks like, Arizona Gov. Jan Brewer, who signed SB 1070 into law last week, said, "I don't know what an undocumented person looks like."
The bill does not prohibit police from
relying on race or ethnicity in deciding who to stop. It is unlikely
that officers will detain Irish or German immigrants to check their
documents. This law unconstitutionally criminalizes "walking while
brown" in Arizona.
Former Arizona Attorney General Grant Woods explained to Brewer that SB 1070 would vest too much discretion in the state police and lead to racial profiling and expensive legal fees for the state. But the governor evidently succumbed to racist pressure as she faces a reelection campaign.
Woods said, "[Brewer] really felt that the majority of Arizonans fall on the side of, "Let's solve the problem and not worry about the Constitution.'"
The polls Brewer apparently relied on,
however, employed questionable methodology and were conducted before
heavy media coverage of the controversial legislation. No Democrats and
all but one Republican Arizona legislator voted for SB 1070.
Undocumented immigrants in Arizona now face six months in jail and a $500 fine for the first offense misdemeanor trespass and an additional $1,000 fine for the second offense, which becomes a felony.
By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders.
SB 1070 creates a cause of action for any
person to sue a city, town or county if he or she feels the police are
not stopping enough undocumented immigrants. Even if a municipality is
innocent, it will still be forced to rack up exorbitant legal fees to
defend itself against frivolous lawsuits.
The bill also makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver impedes the normal flow of traffic, albeit briefly. How many New York taxi drivers impede the flow of traffic when they pick up fares?
The law also
criminalizes the solicitation of work by an undocumented immigrant in a
public place, who gestures or nods to a would-be employer passing by.
This part of the legislation is also unconstitutional as courts have
held that the solicitation of work is protected speech under the First
The new law effectively compels Arizona police to make immigration enforcement their top priority. Indeed several law enforcement groups oppose SB 1070.
The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported.
The Arizona Association of Chiefs of
Police also criticized the legislation, saying it will "negatively
affect the ability of law enforcement agencies across the state to
fulfill their many responsibilities in a timely manner." The group
believes the immigration issue is best addressed at the federal level.