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Arizona’s SB1070 – Unconstitutional No Matter How It’s Spun

History in Brief – Immigration and Constitutional Applicability

Since the foundation of the United States, the fear of foreign invasion has perverted the public discourse on policy and its legal extent. Towards that end, the Constitution’s limitations on search, seizure, and free speech have been hotly contested since even the earliest days of the country. The Constitution was ratified in 1787, with the first ten amendments following shortly thereafter in 1791. Before two presidential terms had passed, the nascent country was facing a conflict with its once-supporter, France. Fearful of foreign operatives infiltrating the US, the Federalist government passed the Alien and Sedition Acts, reducing individual rights to free speech and granting broad Federal authority to deport resident aliens that showed any signs of subversiveness.

As the Adams administration ended, the acts expired. Thomas Jefferson and James Madison, leaders of the Democratic-Republican party, sought to gain control of the federal government, largely using anti-Federalist sentiment based on the Acts. In the Virginia Report of 1799, Madison expressed his state’s general “protest against ‘the alien and sedition-acts’" and his views on their Constitutional merit. In a modern context, his views provide an important background to a founder’s view of the Constitution’s applicability to non-citizens, even before the 14th Amendment clarified the means and extent to which such protections and laws apply to all parties. Madison stated the following:

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.

Even before the 14th Amendment made explicit the equitable protection of law offered to all People with the United States, Madison present a cogent argument for the applicability of the Constitution to non-citizens. However, this clarity of thought was not always embraced, leading to  a situation where certain people within the country, slaves, were denied the rights and equitable protection of the law. Even today, I hear people claim that the rights and protections of the Federal and State Constitutions do not apply to illegal aliens. I will address this falsehood, and then why Arizona’s law cannot be Constitutionally upheld under current jurisprudence.

Equal Protection for All People

The fourteenth amendment states, in part, the following:

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.

There are two standards set forth here, one that applies to the citizens of the United States, and another that applies to anyone under the jurisdiction of United State law. If the line of reasoning set forth by Madison were not convincing, the clear and explicit words in this amendment show that equal protection of rights does not disappear due to immigration status in the country. This protection was upheld in Yick Wo v. Hopkins, where it was ruled that:

The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘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.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by section 1977 of the Revised Statutes that ‘all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.’ The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.

Obviously, then, the first objection of “the constitution doesn’t apply to illegal aliens is devoid of Constitutional support. Why, then, do I think SB1070 violates the Constitution?

Arizona’s Law Runs Afoul of Current Jurisprudence

The Pervasiveness and Ease of Intrusion

Under the amended SB1070, when an officer is in contact that amounts to a “lawful stop, detention, or arrest” with a person, if there is any reasonable suspicion a person is an immigrant, a law enforcement officer is duty bound to determine the legality of that status. This wording supersedes the initial bill’s text of “lawful contact", presumably to head off the Constitutional arguments related to search and seizure. However,  a careful reader will note that the effective requirements have not actually increased under the new wording. Under the new law, Title 13 is amended to include criminal penalties (Title 13 is “Criminal Code”) for the following:

A. In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).

Note that this standard applies only to illegal aliens:

F. This section does not apply to a person who maintains authorization from the federal government to remain in the United States.

Beyond failing a fourteenth amendment test for equal protection, penalties, etc, this law provides a reason for an officer to engage any suspect they believe to be here illegally, as an officer may stop and ask for the name of any person who they have reasonable suspicion “has committed, is committing, or is about to commit a crime.” Since this law makes being here illegally a matter of criminal (not just civil) law – trespassing – an officer has no higher burden under which they must operate. Previously, SB1070 required the officer see the person and have a reasonable suspicion they are an illegal immigrant in order to stop them and determine their immigration status. Now, the amended version requires them to be lawfully stopping a person under reasonable suspicion of committing a crime – such as trespassing. The wording change amounts to nothing more than a legislative hand-waving effort.

The Law Does Not Meet Search and Seizure Standards

The “reasonable suspicion” standard, established in Terry v. Ohio, requires that intrusion into the personal and Constitutionally protected rights of personal effects, papers, etc must both serve “the governmental interest which allegedly justifies official intrusion” and be justified with “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The twofold requirements for such a warrantless search and seizure of any person’s private affairs are not met by Arizona’s law. In order to justify the warrantless intrusion upon a person’s freedoms and private affairs, there must be a “compelling” governmental interest that so outweighs the loss of any individual’s privacy that any delay would pose a threat to the United States. This standard comes from Korematsu v. United States, where the internment of Japanese Americans in WW2 was justified under the following test:

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.

Arizona’s law does not address a situation where the failure to enact its policies poses “immediate, imminent, and impending” danger to the United States public. Moreover, the Terry standard allows only the brief frisking of an individual in order to secure the safety of an investigating officer, not a search into the person’s identification records and immigration status, which is a much higher level of personal intrusion. Under another case, Hiibel v. Nevada, it was determined that “Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop.” Arizona’s relevant statute, mentioned earlier provides that “A person detained under this section shall state the person’s true full name, but shall not be compelled to answer any other inquiry of a peace officer.” This standard does not allow Arizona’s requirement under SB1070 to provide valid identification in the course of a Terry stop. A similar law to Arizona’s was tried and found to violate the Constitution in Brown v. Texas:

The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.

The Logical Conclusion of Enforcement Amounts to Racial Discrimination

Given this framework, one must find and show that objective criteria exists by which to identify illegal aliens. Even though the amended bill states that officers may not “consider race, color or national origin in implementing the requirements” of the bill, that does not meet previously established guidelines. Namely, in Reitman v. Mulkey, it was decided that a court must “assess the potential impact of official action in determining whether the State has significantly involved itself with invidious discriminations.” That means, if the logical conclusion the enforcement of a law amounts to racial discrimination, the law itself must be repealed, even if it is not on its face racially discriminatory. Analyzing the situation in Arizona under any sort of objective lens, one must conclude the law will have the effect of targeting Mexicans in particular, leading to an unequal invasion in their personal effects and papers.

The Law Impedes Upon Freedom to Contract

Under Yick Wo v. Hopkins, “all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts.” Arizona’s law sets an unequal standard:

C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.

A simple thought experiment shows the invalidity of this statute under the equal contract framework. Two individuals, both are immigrants, and both are of the same race, age, build, et cetera are seeking a job as a day laborer. Both stand on a private parking lot, waiting to be hired. One person is illegally present within the United States, the other is not. Under Arizona’s bill, the person who is not legally present may not make a contract for such work. Moreover, should they engage in work anyway, but are not paid, they lose a means for legal recourse, as the state will not enforce the contract they make. This violates both Wo and Reitman, and clearly shows that the law is unequally applied to different persons within the jurisdiction of Arizona state.

Conclusion

Arizona’s law fails to meet Constitutional scrutiny on multiple levels. While groups such as the ACLU have addressed this statute’s violation of the Supremacy Clause, I attempt in this post to demonstrate how the clause runs afoul of fourth and fourteenth amendment jurisprudence. The law allows for seizure of personal information at a level more pervasive than allowed under Terry or Hiibel. Its identification  requirements are akin to those overturned in Brown.  It does not provide justification that meets the bar of Korematsu. The effect of the law can be reasonably seen to enable racial discrimination, invalidating it under Reitman. The unequal ability of illegal immigrants to make and, especially, enforce contracts shows that it cannot be reasonably viewed under Wo. Due to all of these issues, plus those put forth by groups such as the ACLU, Arizona’s bill should be stricken due to being Constitutionally invalid.

It is my opinion that the solution to this problem is a federal expansion of legal avenues for immigration, with strict federal penalties for failure to follow the channels. We should not be turning away those people who are willing to come here and work, but should see them as seekers of the American dream. Millions of people could be productive contributors to our society, if we provided a path that did not have a many-year backlog from application through acceptance. In providing such a means to citizenship, we could turn the tide of illegal immigration into a means of raising our country’s GDP through an increase of legal workers, positively contributing to our economy and our country’s rich cultural heritage.

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