There's no way in hell Arizona's new immigration law passes constitutional muster.
The “Support Our Law Enforcement and Safe Neighborhoods Act” requires that police officers determine the immigration status of a person “where reasonable suspicion exists” that the person is in the country illegally. The officer must then verify the suspects immigration status with the federal government.
As many have noted, the most obvious and provocative question raised by this provision is, “What do illegal immigrants look like?” Theyre probably Hispanic, but so are 30 percent of Arizonas residents. So unless the law authorizes the stopping and questioning of any person who looks darker than the average Caucasian, there needs to be some other criteria that set apart illegal aliens from lawful residents.
But so far, no one has come up with any. When asked what other factors an officer might use to single out an unlawful resident, Arizona governor Jan Brewer replied, “We have to trust our law enforcement.”
Thats not a constitutionally acceptable answer. For one thing, the Constitutions equal protection clause forbids the government from differentiating between anyone in the United States — including illegal aliens — on the basis of race. The new law, on its face, doesn't make racial distinctions, but its supporters havent articulated any other grounds for suspecting that someone is an unlawful resident. It is, therefore, vulnerable to the argument that it essentially criminalizes walking while Hispanic.
There is also, of course, the Fourth Amendment, which perserves that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…". Any law which could result in the random stop of an Hispanic resident — a citizen of Arizona — is on its face, unconstitutional.
But more than that, Brewer's reply to "trust our law enforcement" is also a very bad answer. Law enforcement, under the new law, can be sued for failing to stop a suspected illegal immigrant. That puts them in a bit of a pickle.
A lot of people, even on the right, have spoken out against the new law. And while it may dominate the headlines, I am less concerned. There's no way — no way in hell — this law will survive a court challenge.
UPDATE: Byron York tries to defend the law in today's Washington Examiner and fails. Here's an example:
Police have "lawful contact" all the time that doesn't involve detention of an individual. In fact, I suspect that most of the people that officers come in contact with, lawfully, during any individual day are not "in detention". Crime victims, accidents victims, or just people they meet while walking the beat — the coffee shop owner, for crying out loud — these are just some of the people that police officers have lawful contact with all the time.
If Arizona lawmakers wanted police to check the immigration statuses of those already in custody or under detention — and only those people — they could have easily written that statute to explicitly say so. But the Arizona law, as written, does not say that. It uses the words "lawful contact" — a much more broad term covering a wider range of behaviors.
Besides, another provision of the statute makes mincemeat of York's argument. “A person is guilty of trespassing,” the law provides, by being “present on any public or private land in this state” while lacking authorization to be in the United States — a new crime of breathing while undocumented. So in essence, if an officer comes across (i.e., has lawful contact) with someone breathing, who could reasonably be an illegal alien, he can and must stop that person.
By the way, there is yet another reason why the law is unconstitutional. The supremacy clause. Simply stated, it means that the federal government controls federal issues, not the states. Immigration is a federal matter. End of story.