Unless a US District Judge issues an injunction prohibiting it from going into effect, Arizona law permitting law enforcement in Arizona to make inquiry about a person's citizenship status when they are otherwise stopped by law enforcement goes into effect on July 29, 2010. This bill is facially unconstitutional in that it oversteps and infringes on Federal supremacy in regulation of immigration. A person who regularly comments on this blog and I were discussing this law recently, and he brought to my attention a US Supreme Court case which he believed to be controlling. The case is De Canas v. Bica 424 US 351 (1976). However, the case, while discussing immigration, is not on point. There are several ways to distinguish De Canas from the case before us here.
In De Canas, supra, the Court held that a California law which made it a crime to hire an undocumented worker was not a regulation of immigration, and was not therefore preempted by the Immigration and Naturalization Act (INA). However, the Arizona law, in its most insidious parts, has nothing to do with the hiring of undocumented workers. It purports to empower Arizona law enforcement to enforce immigration laws. The enforcement of such laws are specifically enforced by the Immigrations and Customs Enforcement arm of the Department of Homeland Security (ICE). Although Section 287(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 does allow for ICE to partner with state and local authorities, it also requires that ICE supervise and train those officers who are going to be enforcing immigration law, and it requires a Memorandum of Understanding with the local or state law enforcement department which must state with specificity, among other things, the scope of authority and the limitations on what procedures or functions that the properly trained individuals in that department are able to perform. Arizona's law seeks to grant blanket authority for immigration investigations and determinations to all law enforcement officers in the State of Arizona, without any such training requirement or certification. This is clearly a case of where federal supremacy over a state's laws would apply, and federal law dictates that ICE agents are the primary enforcers of US immigration law. While it is true that ICE can and does delegate some of its responsibility to local law enforcement on occasion, under its partnership with local law enforcement, this delegation is also subject to federal oversight.
The proponents of the Arizona legislation say that because the US Government has failed to curb illegal immigration, they must take this action. However, the proponents of this legislation are all Republicans. It is also republicans who have thwarted any real movement on immigration reform by their mean-spirited and laughable attempts to repatriate all those who are in the United States illegally. At an estimated 11 to 12 million people, where do they think they are going to get all the buses necessary?
The proponents of the legislation also forget that US Law already makes it illegal for an employer to hire someone without the proper documentation of the right to work in the US, but that the business community has for years, (largely with the help of Republicans) fought any attempt to seriously stop the practice. Hugely punitive measures that would cause real pain to companies who routinely hire undocumented workers are unpopular with the business community, because these workers can be underpaid and have little recourse to demand better working conditions and higher pay. This results in higher profits which is pleasing to the stockholders and to their board of directors.
Hopefully, the Hon. Susan Bolton, the US District Court judge hearing this case, will issue a preliminary injunction blocking the law from going into effect, followed by a permanent injunction shoving this law into the dust pan of history. The Republicans who voted for this law should also be held to account by the registered Hispanic voters and other fair-minded citizens of Arizona who should recognize the heavy-handed police state tactics as being counter to the traditions of American fair play and democracy.
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I think you're missing the point here. It's time for the Fed to put up or shut up. It can't have it both ways. Either IT will enforce the laws it has on the books or IT won't. In the latter case REGARDLESS of whether the it's constitutional or not the state has an obligation to it's people even if the Fed won't accept that obligation. I applaud the this law only in the fact that it will force the issue. When the dust settles it won't be possible for the Fed to sit back and continue to do nothing as it has been. Other states are beginning to follow AZ's lead. It wasn't OK for the Bush Admin to cherry pick the laws it wanted to enforce and ignore so it's NOT OK for the Obama Admin. For decades the Fed has turned a blind eye to our border security and illegal immigrants. Both sides are guilty of it. At the very least AZ is TRYING to do something. You may not like it because it's "unconstitutional" but the funny thing is...that hasn't stopped the courts before. Just because it's not something you may agree with doesn't mean AZ's law won't become "constitional". I see absolutely nothing wrong with a police asking if there are any drugs or weapons in the vehicle. Adding one more sentence to that phrase can't do any harm.
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