Thread: WINN: Arizona law will triumph in court

Commentary
The Washington Times
Friday, May 14, 2010
WINN: Arizona law will triumph in court
John Winn

Despite howls of outrage from the political left and right, Arizona's new immigration law (SB 1070) will probably withstand constitutional challenge. At its heart, the statute defines as unlawful trespass the presence in the state of adult aliens (noncitizens) who do not possess valid federal identification. The legislation specifically invokes Section 1304 of Title 8 United States Code. Section 1304 requires aliens "at all times" to carry a certificate of alien registration or an alien registration receipt card. Adequate federal documentation would therefore consist of a permanent resident Green Card, work visa or immigrant visa.

Most criticism of the Arizona law is that enforcement will inevitably lead to unlawful racial profiling by police. The problem with this argument is two fold. First, amending language (which arguably wasn't needed) requires all police inquiries to be based upon an otherwise lawful stop, detention or arrest. The other problem with the illegal profiling argument is that even if such practices were to occur, racial profiling usually isn't illegal, nor does profiling typically violate the United States Constitution. Racial profiling occupies a complicated limbo-land between notions of equal protection (under the 5th and 14th Amendments) and protection from unreasonable search and seizure in the 4th Amendment. The problem with a judicial ban on racial profiling is that it would de facto deprive the police of its most critical law enforcement tool: the hunch. Banning profiling would simply lead to protracted burden-shifting inquiries into the motivation of police whenever a minority suspect is detained based upon a third-party report of crime to which the arresting officer was not personally a witness.

Over the years, the Supreme Court has been quite protective of police hunches. In Whren v. United States (1996), the court unanimously upheld vehicles stops based upon reasonable cause when a traffic violation occurred, despite the "subjective intentions," "ulterior motives" or even "actual motivations" of the officers involved. The Supreme Court has approved police checkpoints and roving patrols near borders to question occupants upon "articulable facts" and "rational inferences" that the vehicle may contain illegal aliens (United States v. Martinez-Fuerte, 1976). In 1992, the U.S. Court of Appeals for the Eighth Circuit upheld the detention and questioning of an African-American teenager in which virtually the only reason for the initial stop was the subject's race and youth. The Eighth Circuit noted that "facts are not to be ignored simply because they may be unpleasant."

Other critics of SB 1070 make reference to Article 1, Section 8 of the Constitution regarding Congress' authority to make rules on immigration. Thus, the argument follows that no state may pass legislation about unlawful aliens. A more careful reading of the Constitution reveals that Congress was granted the power to pass rules regarding "naturalization." Arguably, naturalization is not the same thing as "immigration." But, even if a court determined that the two words have the same meaning, under the Supremacy Clause a state statute is void only if the state law is in "actual conflict" with a valid federal statute (Edgar v. Mite Corporation, 1982). A reviewing court would be hard-pressed to find that the Arizona law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" when such a law merely encourages aliens to obey federal law.

In point of fact, SB 1070 stands firmly upon a position occupied by state police powers for more than 200 years, specifically, the long-standing right and practice of state law enforcement agencies to detain aliens arrested (or convicted) of state crimes pending transfer to federal custody for deportation. In 2007 alone, more than 600,000 non-U.S. citizens were incarcerated in state and local jails awaiting immigration review and removal by U.S. Immigration and Customs Enforcement. Although Congress arguably has the constitutional authority to totally preempt state authority in these matters, to do so would lead to chaos.

Whatever the actual merits (or debatable efficacy) of the Arizona law, public outrage would be better served were it focused upon the debilitating social and economic conditions in Arizona that led the state to criminalize mere alienage. In the bill, Arizona declares enforcement of federal immigration laws is of "compelling interest." In law school, one learns that "compelling" means legal justification of the highest necessity, demanding attention without delay. Even if one could wish away the drug-related violence and mayhem along its borders, a state within which 12 percent of the adult workforce, 15 percent of prison inmates and a rapidly growing proportion of schoolchildren are undocumented noncitizens is a compelling problem indeed.

John Winn teaches business and constitutional law at Shenandoah University in Virginia. He served in the Army Judge Advocate General's Corps from 1985 through 2005, including five years on West Point's law faculty.

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Arizona law will triumph in court

Yes it will and the sooner the better!