Arizona & Actual Law

UPDATE: The text of the Arizona law, amended by HB 2162, is here; description here.

The media (including sportswriters!) is appalled by Arizona's new immigration law. So is President Obama and House Speaker Nancy Pelosi. Lefty bloggers, twitterers and demonstrators too. They say the law makes Arizona a police state.

So, does Arizona's new statute constitute a dramatic expansion of law enforcement power? No--it's actually more restrictive than existing Federal law.

• Arizona law (Senate Bill 1070, as enacted, page 1), adding a new Section 11-1051(b), reading in relevant part:

  For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection.

• Muehler v. Mena, 544 U.S. 93 (2005), slip op. at 7-8:

  The Court of Appeals also determined that the officers violated Mena's Fourth Amendment rights by questioning her about her immigration status during the detention. 332 F.3d, at 1264-1266. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have "held repeatedly that mere police questioning does not constitute a seizure." Florida v. Bostick, 501 U. S. 429, 434 (1991); see also INS v. Delgado, 466 U. S. 210, 212 (1984). "[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage." Bostick, supra, at 434-435 (citations omitted). As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.

• United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976):

  A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.

Conclusion: The Arizona law requires, first, a "lawful contact," and, second, demands "reasonable suspicion" before investigating immigration status. Federal law enforcement officials need not meet that standard unless they detain the person--and legal aliens already are required to carry their registration certificate at all times. Then there's Arizona's language forbidding sole reliance on "race, color or national origin" in enforcing the statute, a provision Arizona's governor insists bars racial profiling.

Arizona's statute may be voided because it's preempted by Federal immigration law (it's being challenged on that and other grounds). But the powers given Arizona police are less invasive of civil rights than the Federal standard -- which isn't that invasive, see Estrada v. Rhode Island, No. 09-1149, slip op. at 5-7 (1st Cir. Feb. 4, 2010) -- and far less draconian than Mexico's. Notwithstanding the hysteria of the left, some of whom seem to believe all immigration laws are racist.

BTW, the new healthcare law also makes some "show their papers." In particular, Section 1411(b)(2)(B), page 106 requires non-citizens joining a Health Benefit Exchange to supply "identifying information with respect to the enrollee's immigration status as the Secretary, after consultation with the Secretary of Homeland Security, determines appropriate." Obviously Obamacare also is a fascist plot. On top of that, Democrats are proposing a national ID card--how is that less intrusive?

(via Constitutional Law Prof Blog, Wolf Howling, reader Marc, Legal Insurrection, The Corner, Center for Immigration Studies)