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Arizona Immigration Law Revised

arizona-welcomeArizona has come under fire from many places, here included, for its new immigration law.   Well, the legislature has responded:

The Arizona Legislature has narrowed a controversial immigration law in response to allegations that the measure legalized racial profiling and forced police to determine the immigration status of everyone they encountered on the streets.

The initial law, signed by Gov. Jan Brewer last week, required police to determine a person’s immigration status if officers formed a reasonable suspicion about their legality during any “lawful contact.” That led to suggestions by some legal experts that police would be obligated to scrutinize even people who asked for directions. A Phoenix police officer who patrols an area near a school sued, contending that it would require him to ask children he encounters during the day if they are in the country legally.

Lawmakers on Thursday night changed the language to require scrutiny only of people who police stop, detain or arrest. They also changed a section of the bill that barred officers from “solely” using race as grounds for suspecting someone is in the country illegally; opponents had argued that that would allow race to be a factor. The legislators removed the word “solely” to bar race from being used by officers enforcing the law.

“It absolutely clarifies what the intent was,” said Paul Senseman, a spokesman for Brewer, who supported the changes and is expected to sign them into law. “It’s undeniable now that this bill will not lead to racial profiling.”

Opponents of the bill, who to date have filed three federal lawsuits against it and promise more, said the changes would make little difference. “They’re nice cosmetic changes,” former state Sen. Alfredo Gutierrez said Friday during a news conference at which activists called for a boycott against Arizona and companies based in the state. “But they’re insufficient.”

Jonathan Adler follows the email trail and observes, “it appears these changes were in the works before the NYT published [bill co-author Kris] Kobach’s op-ed” defending the provisions he helped change.  Of course, there’s frequently a sizable time gap between submission and publication but, still, odd.

I’ll wait to see the legal analysis that comes out over the next few days before making a final judgment but, on the surface at least, this would seem to answer most if not all of the objections that I had.  I can’t come up with any strong argument against verifying a person’s legal identity and status while otherwise detaining them under existing rules.

Now, if this is used as a thin veil — that is, the detention is based on vague suspicion that some shabbily dressed Hispanic is an illegal — then I’d agree it hasn’t fixed anything.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. floyd says:

    Does anyone here still think that the U.S. even has a right to borders or to control immigration or access to government programs?
    Oh well, with the present rate of degeneration of responsible government, it will soon be run about as well as Somalia, then only the serious criminals will even want to come here.
    Look on the bright side… Every criminal behavior which is legalized, reduces crime, so why not eliminate the rule of law altogether and make this a crime free utopia.

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  2. James Joyner says:

    Does anyone here still think that the U.S. even has a right to borders or to control immigration or access to government programs?

    Sure. It just doesn’t have the right to harass American citizens of Hispanic descent on account of they might be illegal aliens.

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  3. Herb says:

    I’m glad they made the changes. The law is a lot easier to defend/harder to criticize now.

    I guess all the folks who said the original law didn’t open the door for racial profiling were…wrong.

    (At least now they’re right!)

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  4. Stan says:

    Suppose that I’m an American citizen of Hispanic descent and that I drive through Arizona carrying an out of state drivers license but not my passport. I’m stopped by a policeman because one of my backup lights doesn’t work. What happens then? Am I given a ticket because of the backup light and then released? Or am I detained until my citizenship can be verified? Can anybody answer this question?

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  5. JKB says:

    Well, Stan, first you have to be from a state that does not require proof of authorized presence in the US for the issue of a driver’s license. Then you have to have some trait or behavior, other than being Hispanic, that rouses the suspicion of the officer that you are not in the country legally. I cannot speak to these behaviors but one would be perhaps you are unable to state the address on your license without effort.

    There are traits based on recent residency. When I lived in Hawaii, I became quite good in determining if someone was a Japanese national or a Japanese-American simple because I interacted with both over a couple of years.

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  6. Herb says:

    Stan, yes, I can answer that question. If your out-of-state license is valid, then you do not get detained.

    You are “presumed to not be an alien who is unlawfully present in the United States.” (Split infinitives anyone?)

    In all actuality, I’m less afraid of the scenario you described than I am in the more blatant (and hard to prove) racial profiling angle. Say, a cop pulling you over because he thinks you might be an illegal alien, only to discover a valid state ID, and THEN giving you a bogus broken tail light ticket.

    That’s the real danger, I think: cops fishing for illegals and screwing over citizens in the process.

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  7. steve says:

    It still remains a law with a very small chance of making any difference. Illegals can avoid this by just driving carefully. The ones deported can come right back. It would be much cheaper and safer to go after the places of employment. They, of course, do not want government nosing around, so that will not happen either. Instead, we get another War On Drugs program.

    If your goal is to secure the border, this law has not a chance in hell of accomplishing that. No one has ever successfully attempted to secure a 1500 mile border AFAIK. The most successfully controlled border in the world is probably the North-South Korean border, which is about 160 miles (the Berlin Wall was about 90 miles IIRC).

    By previous rough estimates I have gone through, I think we are probably talking about $50 billion to build a wall, watchtowers and access roads plus the eminent domain issues that will arise. I have figured another $5-$10 billion a year in personnel costs, including dogs. This is just for the southern land border. It does not eliminate the ocean route or the northern border. It also does not factor in any environmental costs of migratory species, especially any that might be pollinators.

    On the plus side, the Statue of Liberty has become very costly to maintain. We could melt it down for barbed wire and save a bundle.

    Steve

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  8. An Interested Party says:

    Oh well, with the present rate of degeneration of responsible government, it will soon be run about as well as Somalia…

    That should please many libertarians…

    Then you have to have some trait or behavior, other than being Hispanic, that rouses the suspicion of the officer that you are not in the country legally.

    And what would those traits/behaviors be?

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  9. ARNONERIK says:

    They did not change the law. They just made it easier for dumb Liberals to understand. The law always said they would only ask for proof of citizenship if they were already stopped for something else. I don’t know about your state but in my blue state it is customary for police to ask for my drivers license and registration any time I violate a traffic law. Should I be screaming discrimination and racism because I have a dark skin color.

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  10. Zelsdorf Ragshaft III says:

    Interested, would a large group of people quickly exiting a van or truck, running in all directions cause you to be suspicious? How about individuals or small groups appearing out of the desert on to a hiway no where near a town. Some of the individuals are carring large packages others are carrying what appears to be AK-47 assault rifles with Soviet markings? I get suspicious when I see a group of men loitering (which in most jurisdictions is not lawful) outside of a home depot. But then if you play political correctness, all you ever get is clean up, never prevention.

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  11. just me says:

    Stan pretty sure the law defines a license as proof of legal residence, and most states require some proof of legal residence (I know when I got my license I had to produce my birth certificate, and in my current state a birth certificate is required-not sure what the requirement is for non citizens-I would assume the visa paperwork that permits them to be in the country along with proof of legal age).

    Honestly I don’t really have any issues with requiring proof of legal residence if it is accompanied by a suspicion of some other law being violated. Legal immigrants are already federally mandated to keep their paperwork on them. And a person can’t drive a care legally without a license.

    Personally I think the best way to handle immigration is to have a very strict-come here illegally you are deported enforcement accompanied by a rather liberal legal immigration policy. I think we basically have to make illegal immigration more painful than legal immigration and right now we have the two reversed. It takes a lot of time and money to legally immigrate while illegal immigration is laxly enforced. I would also add that employers should be severely fined and prosecuted when appropriate for hiring illegal immigrants. Make the costs more painful to the employer.

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  12. Michael Reynolds says:

    This is just another in a series of problems we have which do not fit within the Right-Left framework.

    We have a right to control our borders. Period.

    We have a right to enforce immigration laws by deporting people who are here illegally. Doing so is not a human rights violation.

    Illegal immigration definitely causes problems, disproportionately in AZ.

    But we also rely on illegal immigrants. Let’s stop pretending that anyone else wants to pick cotton or process chickens. And let’s stop pretending that we don’t need our cotton picked and our chickens plucked.

    And a big part of the immigration-associated crime is actually a function of our idiotic drug laws. My gardner isn’t shooting cops in the desert, the drug runners are.

    In effect we create a huge lure for illegals in the form of jobs no one else will do. And we create a huge lure in the form of a black market in drugs. And rather than doing two obvious things — work out a reasonable guest worker arrangement and legalize weed — we force police officers to act as immigration agents and make brown-skinned Americans into second-class citizens.

    We are paralyzed because every rational way forward is blocked by radical nuts on one side or the other.

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  13. reid says:

    Great post, Michael.

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  14. Stan says:

    I’m still hazy about several points arising out of the Arizona law. Are all state drivers licenses proof of citizenship? If not, will Arizona policemen have a list of the states whose licenses are acceptable? If I’m stopped for a traffic offense and if I’m riding with American citizens who look Hispanic and who don’t have their drivers licenses with them, would they be detained? If they are detained, what has to be done to get them released? Will secretary of state offices in all the states and the District of Columbia have to stay open 24 hours a day, seven days a week, to be available to vouch for the citizenship status of people like the passengers in my car?

    To me, these seem to be tricky questions, and I have a strong feeling that the Arizona law doesn’t answer them.

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  15. I’m glad they made they changes too, but the question has always been how will be enforced. The sad fact is that in most of the country, cops do whatever the hell they like, regardless what the law says on the matter, and are rarely held responsible for it.

    Cops will use this law as a pretext to arrest any hispanic who is irritating them and make up a story to justify the detention after the fact.

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  16. anjin-san says:

    Does anyone here still think that the U.S. even has a right to borders

    I guess in the light of a continually improving economy and Obama’s enactment of his legislative agenda the right needs some kind of bogus issue to talk about.

    Some folks might want to crack a history book and take a look at Richard Nixon’s attempt to “secure the border”. He wanted to cut off the flow of pot from Mexico.

    He did have brief success at cutting off pot from Mexico, but surprisingly enough, all the smugglers did not decide to go legit, attend night school, and become accountants. They decided to start smuggling cocaine.

    So the flow of reasonably harmless Mexican dope was interrupted for a while, and the harm to society from the cocaine explosion of the 70′s continues to this day. Unintended consequences are a bitch. Like the consequences we may have to live with as a result of a vast expansion of police power.

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  17. legion says:

    While I’m pleased they made these changes, I’m still somewhat annoyed here… I can only assume the blatant unconstitutionality of some of the affected passages is what prompted this, but really – is it too much to ask a state legislature to consider that concept *before* passing it and making their state into an international laughing stock/object of shame? Really?

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  18. PD Shaw says:

    Some of you seem to be assuming that cops in other states or jurisdictions never check for immigration issues when they pull over someone on a traffic citation. I don’t think that’s true at all. To my knowledge if you’re pulled over and the cop is suspicious of your legal status, they have a call put into immigration and possibly detain the person until they receive instructions.

    I’m not suggesting this is common. Cops, unlike most of the assumptions here, don’t like paperwork, INS don’t like to worry about a single person, and some cities pass laws preventing the cops from doing this work either to conserve resources or placate an electoral group, but I wouldn’t assume this was necessarily the normal situation.

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  19. Zelsdorf Ragshaft III says:

    Anjin, if you truly believe what you wrote, you should seek professional counseling. Accountants smuggling coke? WTF is wrong with you? Possibly you do not understand the term illegal. Do you still free base or have you graduated to crack? I doubt seriously you have a lot of trouble with police as you still post here. Notice any inconsistency with your politics? You seem to favor socialism yet cry out when police powers expand. Go live in a socialist state and discover what police power is like. I have alway thought liberals were full of it. You make my case.

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  20. Dave Schuler says:

    I find it remarkable that so little attention has been devoted to other aspects of Arizona’s law, much of which is devoted to preventing Arizona jurisdictions from declaring themselves sanctuaries for illegal immigration and providing avenues by which Arizona citizens may sue such jurisdictions.

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  21. Dave Schuler says:

    I agree materially with Michael’s comment above but would like to add one thing to it. If you oppose any enforcement of laws against illegal immigration, you are de facto in favor of unlimited immigration. That would seem obvious but apparently it isn’t.

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  22. PD Shaw says:

    Stan, federal law requires the states to have begun implementing national standards for driver’s i.d., so that in most states, a valid driver’s license is going to be proof that you are in the country legally. Some states have dragged their heals on this though.

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  23. just me says:

    But we also rely on illegal immigrants. Let’s stop pretending that anyone else wants to pick cotton or process chickens. And let’s stop pretending that we don’t need our cotton picked and our chickens plucked.

    I am not convinced that this is really the case. It is pretty clear that in many jurisdictions this is the scut work that comes with poor conditions and low pay and if there is an illegal immigrant population they will take the jobs and depress the wages.

    I happen to live in a state that is 99% white. Guess what-white American citizens do the gardening, do the landscaping, pick the crops, work the fields and do all sorts of nasty jobs that supposedly Americans won’t do. I think this area of the debate is more of a chicken and the egg thing than a matter of Americans really being unwilling to do the work since they do it all the time where I live.

    That said I still think we need to make legal immigration easier and cheaper. I really don’t mind if somebody wants to come to the US to do work-scut or other-and think they should be able to come without tons of hassle. The problem is we have so many hoops a person has to jump through to get here legally, that coming the illegal way is easier.

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  24. steve says:

    Dave- Not all laws, just dumb ones. How will those close the border? If this leads to finding any illegals, what will keep them from coming back? The California studies on illegal immigration showed a fairl high rate of return among those deported IIRC.

    Steve

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  25. Dave Schuler says:

    On the talking heads programs this morning those who attacked the Arizona law most bitterly couldn’t think of a thing that they’d approve of in the way of enforcement. I think we can reasonably conclude they’re in favor of unrestricted immigration.

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  26. Michael Reynolds says:

    Just Me:

    The difference is in the income gap, I think. “Poor” in Mexico is a whole different thing than “poor” in California. You can’t live in CA on what you’d make picking fruit here. What you can afford to do is live in a migrant camp with ten other guys sharing minimal expenses, then take your wages across the border to Mexico and maybe keep a roof over your kids’ heads.

    There might me Americans willing to do stoop labor, but at existing below-survival wages? So we’d have to raise wages, which would raise prices, which may price California produce out of the market. Which is why we’ve never gotten remotely serious about really stopping Mexican immigration.

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  27. Herb says:

    I think we can reasonably conclude they’re in favor of unrestricted immigration.

    Oh sure, we can conclude that, but let’s not say we’re being reasonable about it.

    Any of them say we should shut down ICE? Immediately stop all deportation proceedings? Throw open the borders and eliminate all visa requirements?

    No? Well, then I think we can reasonably conclude that they’re NOT in favor of unrestricted immigration.

    More details please.

    (I say this as a guy who’s in favor of immigration reform, but not “unrestricted immigration,” and it would annoy me to no end to hear people parody the “immigration reform” position as the “unrestricted position.” That crap is so played out.)

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  28. sam says:

    For purely partisan reasons, I applaud the actions of the Arizona legislature. The modern GOP has lost the black vote (if it ever had it) and is now well on its way to losing the latino vote (the fastest growing segment of the American electorate). As Kevin Drum pointed out, this is the least surprising headline of the day:

    Conservative Latinos Rethink Party Ties

    Adam Bustos, a third-generation Mexican-American, has voted Republican since Ronald Reagan ran for president. But he has been reconsidering his party affiliation since Arizona State Gov. Jan Brewer signed the nation’s toughest immigration law last month.

    “I’ve been thinking I might leave the party,” said Mr. Bustos, a 58-year-old Arizona native. “A lot of my Latino Republican friends have been talking about it after this law.”

    Adios.

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  29. GS says:

    Those of you against this law that don’t live in a border state are talking out of your asses. “Some shabbily dressed hispanic”, James? Really? That describes me half the time, and I’ve never had a problem with, you know, Sheriff “Goebbels Lite” Joe and his posse of illegal-beating brownshirts (sarcasm, for those of the leftist persuasion). If you lined up ten illegals and ten American hispanics from Arizona, I could pick them all correctly. That’s not ill-informed bravado. If you’d lived here your entire life, you’d know what to look for too, and no it’s not “them brown skinned fellers”, which describes me, and I’ve never been approached as a potential illegal, mainly because I’m not standing on Arizona Ave. waiting to be picked up for day labor. The folks that get fake SSID’s and work slave-labor jobs (which is a border problem that is much more the fault of American businesses) don’t really stick around in AZ; we get more of the construction/landscaping illegal presence, and there are plenty of Arizonans willing to do those jobs (my neighbors are landscapers) but they’re not willing to do it for 75 cents an hour plus a cheeseburger. Besides, Arizona LEO’s KNOW that they’d be buried under wrongful-arrest suits if the law were to be enforced in the manner in which worryworts caution it could. Be serious.

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  30. An Interested Party says:

    If you lined up ten illegals and ten American hispanics from Arizona, I could pick them all correctly.

    How?

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  31. James Joyner says:

    That’s not ill-informed bravado. If you’d lived here your entire life, you’d know what to look for too, and no it’s not “them brown skinned fellers”, which describes me, and I’ve never been approached as a potential illegal, mainly because I’m not standing on Arizona Ave. waiting to be picked up for day labor.

    See, I’ve got no problem whatsoever with “reasonable suspicion” when it’s framed in such a way. It’s perfectly reasonable to assume that those people have a high probability of being illegal aliens and asking to see some ID.

    My concern here was with an overbroad law with the possibility of enforcement in an unconscionable manner. The tightening up over the weekend probably fixes it. But I think it’s worth paying attention to until we’re sure of that.

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  32. pylon says:

    Are all state drivers licenses proof of citizenship?

    I have a Canadian friend with a winter vacation place just outside of Phoenix. He got an Arizona drivers license with his Arizona address (handy to get the discount for locals at the golf courses). He ain’t a US citizen, nor does he have a green card, since he doesn’t work there. Of course, he’s not there illegally, being a vacationer, but I imagine it wouldn’t be all that hard to have the same license if he was.

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  33. [...] “papieren, bitte!” complaint about the law was far from hyperbolic.  But this problem has been removed, replaced with a restriction that police may ask for proof of status only upon a lawful stop, [...]

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