Arizona Illegal Alien Bill – A Weak Defense

illegal-alien-costumeArizona’s ill conceived illegal alien crackdown, which is so obviously overbroad as to have drawn concern from Tom Tancredo, Marco Rubio, Karl Rove, Jeb Bush, Lindsey Graham and Joe Scarborough, has drawn one unlikely defender: George Will.

It is passing strange for federal officials, including the president, to accuse Arizona of irresponsibility while the federal government is refusing to fulfill its responsibility to control the nation’s borders. Such control is an essential attribute of national sovereignty. America is the only developed nation that has a 2,000-mile border with a developing nation, and the government’s refusal to control that border is why there are an estimated 460,000 illegal immigrants in Arizona and why the nation, sensibly insisting on first things first, resists “comprehensive” immigration reform.

Arizona’s law makes what is already a federal offense — being in the country illegally — a state offense. Some critics seem not to understand Arizona’s right to assert concurrent jurisdiction. The Mexican American Legal Defense and Education Fund attacks Gov. Jan Brewer’s character and motives, saying she “caved to the radical fringe.” This poses a semantic puzzle: Can the large majority of Arizonans who support the law be a “fringe” of their state?

I’m with him so far. But the criticism isn’t of the bill’s intent but it’s method and likely consequences. He retorts:

But Arizona’s statute is not presumptively unconstitutional merely because it says that police officers are required to try to make “a reasonable attempt” to determine the status of a person “where reasonable suspicion exists” that the person is here illegally. The fact that the meaning of “reasonable” will not be obvious in many contexts does not make the law obviously too vague to stand. The Bill of Rights — the Fourth Amendment — proscribes “unreasonable searches and seizures.” What “reasonable” means in practice is still being refined by case law — as is that amendment’s stipulation that no warrants shall be issued “but upon probable cause.” There has also been careful case-by-case refinement of the familiar and indispensable concept of “reasonable suspicion.”

And that’s technically right as far as it goes. But it’s one thing to have a reasonable suspicion that someone is, say, stealing a television and quite another to have a reasonable suspicion that a person isn’t a citizen or authorized visitor. Unless one restricts it to cases where an officer has a specific tip — all the employees of Firm X are illegals, say — it’s mighty hard to develop a suspicion that someone is here illegally without resorting to racial and linguistic profiling. And, in a state that’s one third Hispanic, that’s an enforcement nightmare.

Some critics say Arizona’s law is unconstitutional because the 14th Amendment’s guarantee of “equal protection of the laws” prevents the government from taking action on the basis of race. Liberals, however, cannot comfortably make this argument because they support racial set-asides in government contracting, racial preferences in college admissions, racial gerrymandering of legislative districts and other aspects of a racial spoils system. Although liberals are appalled by racial profiling, some seem to think vocational profiling (police officers are insensitive incompetents) is merely intellectual efficiency, as is state profiling (Arizonans are xenophobic).

Oh, c’mon. The argument isn’t that police are incompetent but that they’re not equipped to correctly guess a person’s citizenship with sufficient accuracy to allow them going around demanding to see identification. And that the disparate impact of these errors will fall on people who look and talk a certain way.

Will’s closer is a beaut:

Non-Hispanic Arizonans of all sorts live congenially with all sorts of persons of Hispanic descent. These include some whose ancestors got to Arizona before statehood — some even before it was a territory. They were in America before most Americans’ ancestors arrived. Arizonans should not be judged disdainfully and from a distance by people whose closest contacts with Hispanics are with fine men and women who trim their lawns and put plates in front of them at restaurants, not with illegal immigrants passing through their back yards at 3 a.m.

This earns a terse imperative from Julian Sanchez, who further explains:

Ho ho! See what he did there? He’s flipping the script! It’s critics of the law—all presumably themselves non-Hispanic—who are out of touch! Because seriously, where would middle-class professionals and journalists outside Arizona ever encounter a Hispanic, except when they need their hedges trimmed or their tables bussed? That’s pretty much all they do, right?

Now, of course, Will is arguing that it’s the liberal elite who think of Hispanics only as service workers. But Julian’s right:  There are plenty of professional class Hispanics in these parts — along with plenty of day laborers, housekeepers, and other low wage service employees.  Most affluent Washingtonians encounter plenty of both.

And, while there may be some disdain of the ignorant yahoos of Flyover Country from some of the coastal elite criticizing the law, the fact that even anti-illegal immigration die-hards like Tancredo are speaking out against this particular law would seem prima facie evidence that there’s something about this particular law is problematic.  And it’s not a love of illegal aliens but rather a fear of unchecked government power.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tim says:

    Do you really think that with illegal aliens shooting peaceful ranchers on their way back down the drug trail toward Mexico that the cops in Arizona are really going to stop and yank people aside, for no reason, just to inquire as to their citizenship? You have no idea how law enforcement works. One by one, as other crimes are investigated, they now have the ability to determine whether or not the suspect is illegal and proceed from there. It is the “let them catch themselves doctrine” that has been in place forever.
    This is so much cud chewing! I wish there was this much concern on this site for American liberty, but then, it’s always “Oh, come on, do you really think the IRS is going to come to your house and demand payment for your health insurance fee?” scoff, scoff
    By the way, check out Mexico’s immigration laws and compare that to Calderon’s rhetoric. You have to wonder why a president would be for free immigration away from his country, but strict enforcement of his own draconian immigration laws.

  2. Maggie Mama says:

    All the police have to do is set up “drunk driver” roadblocks any place they want. Then they can stop anyone on the road to check for condition of the driver, licenses, registrations, and to look over the condition of vehicle. At their discretion they can stop EVERYONE OR ONLY EVERY OTHER ONE OR WHOMEVER, WHENEVER.

    They do it in the Northeast especially on holiday weekends. Watch it come to Arizona. After all, “it’s for the safety of all the residents”. Perfectly justified and now they have a state law to allow them to pick up illegals without ICE.

    A few hours a day on a busy road should pick up quite a few illegals AND take a few drunk drivers off the road.

  3. Franklin says:

    I haven’t really weighed in much on this subject, but here goes:

    First off, yes, it’s pretty obvious why Arizona has gone down this road. Somebody needed to do something, and this is *one* practical solution. At the very least, maybe it pressures the Feds to do something better.

    Second, I actually know and hang out with professional Hispanics (sorry to ruin George Will’s vision of elitism here), and if asked, I would recommend that they avoid Arizona from now on. That’s just a practical response to the law.

    Third, can I point out that all this violence that people are complaining about is 1) grossly exaggerated, and 2) far, far, far more related to the War on Drugs than illegal immigration?

  4. PD Shaw says:

    James, from your link a Tancredo spokesman has now corrected the claim he opposes the law:

    “You have mischaracterized Tancredo’s comments to KDVR-TV. Read the story again. He said he would not support any law that allowed police to stop people for looking like an illegal. He did NOT say the Arizona law does that. He supports the Arizona law fully because it does NOT do that. You owe him a correction.”

    LINK

  5. Alex Knapp says:

    Citizens and legal residents of a free nation should not be required to carry identification papers at all times, period. End of story.

    And Franklin is absolutely right–if we ended the insane war on drugs, much of the crime involved at the border would cease.

  6. tom p says:

    Say hello to the “Bankrupt Local Government Act” of 2010. This law gives municipalities and counties the choice of only who they want to be sued by: Legal citizens of the US who are darker and speak with an accent who for got to carry their passport, or by people who think the law is not being sufficiently enforced.

    Do Republicans hate government so much that they would stoop to bankrupting it to end it?

    oooooops. I forgot what W and his minions did for us. Yeah, I guess they would.

  7. PD Shaw says:

    Another Tankredo quote:

    Tancredo, a former Republican congressman who lives in Jefferson County, told the Denver Daily News first that he likes the Arizona law so much that he is considering a ballot initiative to bring the law to Colorado.

    LINK

  8. PD Shaw says:

    The problem with the law is this. Unlike Joyner’s assertion, people living in areas with significant illegal immigrant populations know the street corners and parking lots where illegal immigrants are waiting at dawn for work in the cash economy. Perhaps “know” is a strong word, let’s say “reasonable suspicion.” Under the new law, the police target these areas, and the open and notorious disregard of the law that drives people crazy is remedied, the law is declared a success and spreads across the land.

    If, on the other hand, the police begin randomly, blindly asking for i.d. and detaining people, the law will quickly become popular among those people, their family, friends and co-workers. The law will be repealed, and other states won’t pass it.

    That is the danger and risk of democracy. The danger is always in the things that work and are popular.

  9. Steve Plunk says:

    Tim nails the obvious point. This is not a law about driving around looking for illegals but merely another tool to use when illegals are being questioned for other reasons.

    People across the country are asked for ID whenever a police encounter occurs so this is not something new.

    Like it or not it seems a more thought out statute than the recent health care reform bill.

  10. Phil Smith says:

    Folks, nonresident aliens are already required as a matter of federal law to carry their immigration papers at all times.

  11. JKB says:

    …legal residents of a free nation should not be required to carry identification papers at all times

    Well, shoulda, coulda, woulda but for lawful non-citizen residents carrying your papers (or card) has been required for decades.

    According the the United States Citizenship and Immigration Service

    A green card is issued to all permanent residents as proof that they are authorized to live and work in the United States. If you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.

  12. JKB says:

    All this law does is codify elements that require Arizona officials to not turn a blind eye to an individual’s immigrant status when they suspect that status is not lawful. It requires those not lawfully in the US to be turned over to the US government when released by Arizona. It also, permits Arizona prosecutors to investigate Arizona employers who willfully hire those unauthorized to work in the United States. It permits Arizona officials to detain for trespass those individuals who many not lawfully be in the United States for trespassing on Arizona controlled public and private lands.

    The real ill conceived idea here is the persistent not only selective enforcement of law but of serving Democrat officials questioning those who seek to comply with federal law. First, Waxman challenges US CEOs for complying with federal law and now Obama, et al, are challenging Arizona for developing state law to improve compliance with federal law.

  13. DC Loser says:

    What I haven’t heard is what is the effect of this law on the illegals reporting of crimes committed against them? Police have tried very hard to earn the trust of that community to have them report crimes. This is in effect going to stymie law enforcement efforts against criminals who prey on these people, and will end up creating a bigger unreported crime problem.

  14. The argument isn’t that police are incompetent

    Maybe I’ve been spending too long watching the daily parade of horrors over at Radley Balko’s excellent blog, but I will argue that the police are frequently incompetent, if not outright malicious.

  15. LaurenceB says:

    Perhaps supporters of the new law PD Shaw and Steve Plunk should debate each other about how it will be applied, since they have opposing viewpoints. Are police going to question people for simply standing around (breaking no law) in front of the Home Depot, or aren’t they? Or are they just going to question the Hispanic-looking ones?

    This obvious disconnect among you guys doesn’t inspire confidence in those of us who are wary of how this law will be applied.

  16. legion says:

    Heh. The fact that Steve Plunk considers this a well-thought-out law is de facto proof that it is, in fact, not.

    One unintended consequence I haven’t seen discussed much is the fact that this law will be fought over in courts for years. No matter what you think of it, and no matter how Constitutional is turns out to be, it is pretty much a certainty that the legal costs of defending (or even enacting) this poorly-written piece of tripe are likely to bankrupt the state and many municipalities. That’s not responsible governance no matter how you slice it.

  17. c.red says:

    I would guess that this bill will eventually get struck down as unconstitutional, but it will probably take awhile for that to happen. While it may be designed to comply with current standards of law enforcement it seems to inherently cut a little close to unwarranted search and seizure and right to privacy clauses.

    I think the real ugliness will occur when an american citizen (not an immigrant, legal and illegal) gets picked up without ID.

    I think in practicality that the law is a long term disaster both directly and indirectly as it will create a dis-incentive for a large part of the population of the state to stay and reduce tourism and it negatively affects the state image. I would guess that it will make violent crime and forms of human trafficking worse not better for all the reasons that other people have stated. It seems tailor-made for picking up relatively harmless and peaceful individuals while making it more difficult to find the actual violent ones.

    That being said Arizona does have, and has had for at least 25 years, a problem with illegal immigration. It will probably continue as long as there is lots of money north of the border and not much south of it. I have long believed that the most effective solution would be to go after the people that employ the illegal immigrants rather the immigrants themselves, but no one seems to be very interested in doing that.

    Anyway, even though I strongly disagree with the law, I am willing to let Arizonians try it and see what happens, since they live there.

  18. PD Shaw says:

    Perhaps supporters of the new law PD Shaw

    I wouldn’t describe myself as a supporter of the new law. I support a national i.d. card, which I understand the same people complaining about this law believe to be fascist.

    I’m not outraged by this law. We’ve had stop and identify laws in this country from before it was founded. I don’t believe the Constitution speaks to this, so long as the nature of the identification to be provided is clear.

    I don’t think you can intellectually defend this law with the most extreme examples of harm from illegal immigration any more than you can intellectually oppose this law on the most extreme examples of police abuse.

    I don’t live in Arizona and don’t live in an area with significant illegal immigration issues, so I probably wouldn’t support such a law applied here. I notice there is at least some evidence (though incomplete) that hispanics in Arizona support this law.

  19. grampagravy says:

    I hate to sound like I’m defending Jan Brewer. I’m still not over Janet leaving us to Brewer’s tender mercies. However, SB1070 had to happen sooner or later in the absence of real immigration reform. Every murder, kidnapping, robbery, or rape committed by an illegal is one too many. Believe me, we have more than enough people who are here legally to commit these crimes. Those of you who don’t live here and don’t face the problems created by this issue have no business holding an opinion. All this blah blah blah in defense of people who willingly and knowingly broke the law to get at the head of the immigration line, especially by people who don’t experience the effects of this illegal activity, is disgusting.
    Those who are genuinely upset by Arizona’s new law should agitate against their local Federal representatives who have done nothing about immigration at the proper level.
    Walk in our shoes or shut up.

  20. JKB says:

    The funny part is all this hysterics about the law really isn’t about the impact on hispanics but rather the bill targeting the pro-illegal immigration crowd in state and local government. The law requires immigration status be check and illegals be reported to ICE. Requires all person arrested have their immigration status verified before release. Makes it a crime to transport illegal aliens. Provides civil lawsuit authority to lawful residents against state and local official and agencies that adopt a policy to not fully enforce federal immigration laws.

    In reality, this isn’t an anti-unauthorized immigrant law but rather an anti-San Francisco liberal bill. As well as an anti-exploit the illegal immigrant bill to get cheap work around the house.

    BTW, as JammieWearingFool notes, such laws have been in place in Cobb and Gwinnett counties in GA for some time to good effect in locating and deporting criminal unauthorized aliens.

    Four murder suspects, 10 alleged rapists and 27 suspected child molesters were also among those detained for federal immigration officials.

  21. Drew says:

    Alex –

    “if we ended the insane war on drugs, much of the crime involved at the border would cease.”

    Amen.

    “Citizens and legal residents of a free nation should not be required to carry identification papers at all times, period. End of story.”

    Really? Isn’t it current law both here and in other countries that foreigners must. So how do we differentiate?

  22. takoyaki says:

    Supporters seem to assume that enforcement of this law will be cut and dried: no ID, look and sound like illegal, open and shut case.

    However, a percentage of illegals obtain a fake ID card of some form; drivers license, SS cards, state ID cards, etc. Is this possibility covered in the law? If not, mission creep will eventually lead to law enforcement making subjective decisions on whether the ID the suspected illegal has is authentic or not. Especially in conjunction with other “reasonable suspicions” at the time (dress, linguistic ability, etc.). I’m sure quality of these forgeries vary, but will law enforcement have the tools available to definitively determine that on site in all cases? If not, this will almost certainly lead to US citizens of Hispanic descent being detained.

  23. mannning says:

    As a resident of Holland for a decade, I was required to have my passport in my possession at all times, since it contained my work permit and resident permit. I did not see this as a problem, since I was indeed a foreigner in the country–a guest, so to speak. I also expected to comply fully with all laws of my host nation.

    In the US, I find it quite necessary to have my driver’s license with me at all times, and a credit card comes in handy too.

    In view of these cases, I see no special problem if Arizona requires its residents and walkarounds to have proper identification with them.

    I don’t remember voting for the US to allow literally millions of illegal aliens to wander through the nation, and to accord them most rights of citizenship. Do you?

    As for the police using this law to excess, I seriously doubt it will be a huge problem, since each case will require the policeman to both document his rationale for suspecting the person, and to appear in court to defend his action. Thus light suspicion will be tamped down, in favor of using this law as a secondary action once someone is arrested on other grounds. The threat, however, may be beneficial in reducing the flood of wetbacks.

  24. PD Shaw says:

    JKB, that’s an interesting link. It does suggest though that the Arizona program needs to utilize the existing federal program to train local and state officers in immigration law. Don’t know if that’s part of the Arizona law, but immigration law isn’t criminal law.

    It also suggests what I believe most likely to happen. People pulled over for a traffic infraction will be the primary targets of the Arizona law.

  25. An Interested Party says:

    re: mannning at April 28, 2010 17:23

    Such an enlightened viewpoint from someone who refers to illegal immigrants as “wetbacks”…charming…

  26. An Interested Party says:

    Hmm…how does this sound to you?

    “I think we should catch ’em, we should document ’em, make sure we know where they are and where they are going,” said Pat Bertroche, an Urbandale physician. “I actually support microchipping them. I can microchip my dog so I can find it. Why can’t I microchip an illegal?

    “That’s not a popular thing to say, but it’s a lot cheaper than building a fence they can tunnel under,” Bertroche said.

  27. JKB says:

    PD Shaw,

    You need to check out this summary of the law as sent to the Governor. The law simply requires Arizona officials to fully enforce federal immigration laws.

    Prohibits law enforcement officials and law enforcement agencies of this state or counties, municipalities and political subdivisions from restricting or limiting the enforcement of the federal immigration laws to less than the full extent permitted by federal law.

    The law mandates that immigration status is as determined by US ICE or CBO or a law enforcement official authorized by the federal government to make immigration status determinations.

    The law also lists an Arizona drivers license or non-driver identification card, tribal enrollment or identification card or an ID issued by federal, state or local government that requires proof of legal presence before issuance as de facto proof of legal presence.

  28. mannning says:

    Perhaps not all illegal immigrants cross through the Rio Grande, but enough do to warrant well the moniker “wetback”. Those who think calling a spade a spade is unenlightened are simply PC junkies and bleeding-heart liberals. The usual moniker is “undocumented worker” which is so patently euphemistic that it makes me gag. An illegal immigrant wetback is a lawbreaker.

  29. An Interested Party says:

    Since we are being so frank, surely you won’t mind if so many of those protesting these days are refereed to as teabaggers, rednecks, and other assorted uninformed riffraff…

  30. mannning says:

    You are welcome to your monikers and your misguided opinions, AIP. Many don’t have a PhD in liberalthink, or PC, and few want such! Call’em as you see’em.