CATO Legal Analysis of SB 1070!

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A Legal Analysis of the New Arizona Immigration Law
Posted by Ilya Shapiro

I’m a bit late to the immigration party — in part because I’ve been traveling on my Obamacare debate tour and in part because the Kagan Supreme Court nomination and end-of-term Supreme Court decisions have sucked away all my time. Still, I do have a few things to add beyond Dan Griswold’s excellent points about what real immigration reform would look like and why Arizona’s new law, love it or hate it, at least has the benefit of raising the need for such fundamental reform into the national political discussion. (Jeffrey Miron also offers some sensible suggestions, and Roger Pilon points out that doing nothing is simply not tenable as a matter of policy or politics.)

First, the Arizona law — which I’ve actually read, unlike the attorney general and the secretary of homeland security – is carefully crafted so as not to go beyond the scope of federal law and so, as Dan alludes in his thoughtful podcast (drawing on discussions with Roger), is probably constitutional. Here are the key things it does:

1.Creates the new state crime of “trespassing by illegal aliens,” which essentially consists of being in the state in violation of federal immigration laws as determined by an officer or agency authorized by the federal government to verify immigration status;
2.Sets out that no official or agency of the state or its political subdivisions (county, city, etc.) ”may adopt a policy that limits the enforcement of federal laws to less than the full extent permitted by federal law;”
3.State (and local) law enforcement officials shall make a “reasonable attempt . . . when practicable, to determine the immigration status” of any person with whom they have made “lawful contact . . . where reasonable suspicion exists that the [detained] person is an alien who is unlawfully present in the United States;”
4.If an alien who is unlawfully in the United States is convicted of violating any state or local law [including the new "trespassing by illegal aliens"], the alien “shall be transferred immediately [on discharge from imprisonment or assessment of fine for the offense] to the custody of the [federal immigration authorities];”
5.A police officer “may lawfully stop any person who is operating a motor vehicle of the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and [the the pre-existing law against human smuggling];”
6.Makes it illegal to stop to hire or pick up passengers for work if the vehicle “blocks or impedes the normal movement of traffic;”
7.Makes it illegal for an illegal alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor;
8.Makes it illegal for anyone violating the law (including the new illegal hiring law, as well as pre-existing prohibitions on hiring illegal aliens) to transport, move, conceal, or harbor persons who the alleged violator knows to be illegally in the United States, as well as to encourage or induce aliens to come to Arizona illegally;
9.Provides an entrapment defense to the pre-existing crime of employing illegal aliens (whether knowingly or intentionally); and
10.Authorizes the immobilization or impoundment of vehicles used to committ various vehicle-related offenses relating to illegal aliens.

None of these provisions, on their face, appear to be unconstitutional, in the sense of Arizona intruding on federal authority over immigration policy. Indeed, as reported last week by the Washington Post, this conclusion is backed by a 2002 memo from the Office of Legal Counsel — the Department of Justice unit that acts as the executive branch’s “outside counsel.” This memo concludes: first, that states have “inherent power” to make arrests for violating federal law and, second, ”federal statutes should be presumed not to preempt this arrest authority.” OLC memos are not law themselves but they are the DOJ’s official position on various legal issue. Having said that, an OLC memo can at any time be withdrawn or replaced — as indeed the 2002 memo replaced an earlier 1996 memo on the subject (or, more famously, Jack Goldsmith withdrew the so-called “torture memos”).
And, of course, Congress could pass a law saying states shall not enforce federal immigration laws.

Second, notwithstanding the new law’s facial constitutionality, state or local law enforcement officials could use it to behave in a way that intrudes on federal prerogatives or violates constitutionally protected individual rights. That circumstance could give rise to an “as-applied” legal challenge. If police officers stop Hispanic motorists on pretextual grounds just to ask for their papers, for example, that would constitute a Fourth Amendment violation. Notably, however, the sections relating to state enforcement of federal immigration laws contains a provision specifying: “This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Third, just because the law is constitutional doesn’t necessarily mean it’s good policy (just like not everything that some people say is good policy — like Obamacare, or torture during interrogations – is necessarily constitutional). There are many arguments against the Arizona law unrelated to civil liberties or racial profiling concerns, including that it misdirects state and local resources away from more pressing priorities (such as violent crime); that it’s driven by misguided fears of crime (when crime has actually been dropping in Arizona, and nationally the foreign-born commit crimes at lesser rates than the native-born); and that an “enforcement-first” mentality gets things backwards in that we should first reform and expand the ways people can come here legally and then take action against those who still come illegally. Similarly, there are many arguments in favor of the Arizona law not based in racism, or political opportunism, or misapplied economics.

Fourth, the boycotts of Arizona adopted by city councils around the country — at last count, Berkeley, Boston, El Paso, Los Angeles, Oakland, San Francisco, St. Paul, and West Hollywood have all passed resolutions restricting official travel, investment, and/or contracts with the Grand Canyon State – are likely themselves unconstitutional. That is, unlike private individuals, organizations, and businesses, states (and their political subdivisions) cannot erect barriers to trade against other states. Preventing such interstate discrimination was, of course, one of the original purposes of the Constitution and, specifically, its Commerce Clause (which grants Congress the power to regulate interstate commerce). We often discuss the Commerce Clause in terms of Congress incorrectly invoking it to justify legislation not having anything to do with either commerce or interstate activities — such as, again, the individual health care mandate — but just the same it protects economic liberty by forestalling trade wars. (Technically, the issue here is the “dormant” Commerce Clause in that cities are intruding on the boycott-less regime Congress has established by not passing boycott laws.) Lo and behold, Gary Pierce of the Arizona Corporation Commission sent a letter to L.A. Mayor Antonio Villaraigosa threatening to cut-off the 25 percent of its electricity that the City of Angels gets from its eastern neighbor. “I am confident that Arizona’s utilities would be happy to take those electrons off your hands,” the commissioner says. Stopping this sort of tit-for-tat silliness — along with being able to better muster national armies — is why we got rid of the Articles of Confederation.

In short, the Arizona immigration law presents a tremendously complex issue, as the Arizona Republic has recognized, that does not lend itself to easy calls or soundbites. I myself am not certain how I would have voted if I didn’t have the third option (as Arizona doesn’t) of imminent federal reform — to the disconsolation of state legislators around the country who have asked me what they can do to placate a (legitimately) aggrieved public besides enactiong Arizona-style laws.

President Obama and Congress, pass comprehensive immigration reform now!

Ilya Shapiro • May 24, 2010 @ 7:48 am
Filed under: Government and Politics; Law and Civil Liberties; Trade and Immigration
Tags: Arizona, bill 1070, immigration, Office of Legal Counsel, preemption

Update on the Arizona Immigration Issue
Posted by Ilya Shapiro

Since I provided my legal analysis of the new Arizona immigration law, I’ve become aware of a few interesting developments in that regard.

First, it seems that I wasn’t working off the latest version of the bill — which I should add is awfully hard to find. Indeed, perhaps we should excuse Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano for not having read it; both the Arizona Senate’s website for SB 1070, and the Arizona House’s website for the amending legislation, HB 2162, list several different versions under their “Bill Versions” tabs that do not match the bills in the other. As someone who typically plays in the federal sandbox, if someone can direct me to a verified true copy of the final operative bill, as signed and amended, my colleagues and I – indeed the entire policy community – would be grateful.

In any case, I’m please to announce that the (seemingly) final amended version I’m now working from has improved an already constitutional bill by further safeguarding civil liberties. Most notably, the ”may I see your papers?” provision was changed to read that law enforcement officials shall make a “reasonable attempt . . . when practicable, to determine the immigration status” only after having made a “lawful stop, detention, or arrest . . . in the enforcement of any other law or ordinance . . . where suspicion exists that the [detained] person is an alien and is unlawfully present in the United States” (amended text in bold). This establishes a higher predicate standard for police to initiate contact with any person to whom this law will be applied. In other words, there has to be an independent reason for the stop or detention before the police can ask to see proof of immigration status.

The amended bill also prohibits any consideration of “race, color or national origin” in enforcing the new law in any manner that runs afoul of either the U.S. or Arizona constitutions. Moreover, the legislature clarified that the determination of an alien’s immigration status would only be performed by Immigration and Customs Enforcement (ICE), the Border Patrol, or a “law enforcement officer who is authorized [to do so] by the federal government.”

All of these changes unquestionably improved the civil rights provisions of the law and should further protect it from successful legal challenge — again without saying anything about the law’s policy wisdom.

Second, while some analysts have argued that Arizona’s law might be preempted by federal law — although the leading case, De Canas v. Bica, 424 U.S. 351, which is 34 years old and predates more recent immigration reforms, is not favorable to that position — Roger Pilon alerted me to a 2005 case (unanimous in the judgment, less so in the reasoning), Muehler v. Mena, 544 U.S. 93, that shows that Arizona’s law doesn’t go as far as the Constitution might allow. In Mena, the police detained the inhabitants of a house whice they were searching pursuant to a lawful search warrant. While most of the officers performed the search, others questioned one detainee about her immigration status without any reasonable suspicious that she committed any crime — and certainly without having any reasonable suspicion that she was an illegal alien. The Supreme Court, in an opinion by Chief Justice Rehnquist, upheld this line of questioning. Part of the reasoning was that the “may I see your papers?” bit did not prolong the detention in any way — the search was still ongoing — but this is at least some indication that the Constitution allows immigration-related questioning without even the reasonable suspicion required by Arizona.

Third, apparently the head of ICE, John Morton, said his agency will not process illegal immigrants referred to them by Arizona officials. Morton apparently doesn’t think that laws like Arizona’s “are the solution.” Well, we at Cato certainly agree that Arizona’s law will not solve a problem that demands a comprehensive federal solution, but that doesn’t mean federal officials can simply decline to perform their duties under the law as it exists. What Morton proposes is akin to state “nullification” of duly enacted federal law — except worse, because his agency’s job is to enforce that very law. If Morton feels that strongly about our immigration laws, he should either resign or, while complying with his duties, testify before Congress about the law’s defects and lobby his boss, President Obama, to push reform.

Fourth and finally, President Obama is deploying 1,200 National Guard troops to the border and requesting $500 million more for border security. With due respect to Arizona Senators John McCain and Jon Kyl, who want even more troops and money, this approach is neither here nor there. (And it echoes Obama’s split-the-baby decision on Afghanistan, not willing to go for a whole-hog escalation but also not willing to rethink the overall policy.) Half-measures won’t do it here, Mr. President (and Congress). If you lack the heart (or have too much of a brain) for a full wall-and-militarization of our southern border — and perhaps mass rounding up and deportation of 12 million people — it’s time for a fundamental reorganization of the immigration system.

U.S. immigration (non-)policy is nonsensical and unworkable. We’re beyond the point of perestroika; it’s time for regime change.

Ilya Shapiro • May 26, 2010 @ 8:51 am
Filed under: Law and Civil Liberties; Trade and Immigration
Tags: amended bill, Arizona, HB 2162, ICE, immigration, SB 1070
http://www.cato-at-liberty.org/2010/05/24/a-legal-analysis-of-the-new-arizona-immigration-law/
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