Skip to content

Nativism Runs Amok with the Law in Arizona

2010 May 16

When Gov. Jan Brewer swore an oath to uphold the Constitution, did she mean it?

According to the Southern Poverty Law Center there are sixteen active hate groups in the state of Arizona.  A Hate Group is typically defined as an organized group or movement that advocates hate, violence, or hostility towards members of a designated race, ethnicity, religion, gender, sexual orientation, etc.  Of these sixteen, two are specifically anti-immigrant (American Border Patrol and United for a Sovereign America), ten are some derivation of Nazi-era hate and American style White supremacy (Racist Skinheads, White Nationalists, the KKK, and Neo-Nazi), and the remaining four are a mix of general hate (Fundamentalist Latter Day Saints and Sons of Aesir Motorcycle Club), anti-gay (Faithful Word Baptist Church), and Black Separatists (Nation of Islam).

While this doesn’t paint a great picture of what it must be like to be a member of the populations these groups target, Arizona is not exceptional for the number of hate groups populating the state.  The top prizes for that particular category go to Texas (66), California (60) and Florida (51).  What the hate groups of Arizona do have going for them though, competitively speaking, is that they live in the first state to institute such laws that appear to have come from a hate-groups’ wet dream.

On April 23rd, Arizona Governor Jan Brewer signed Senate Bill (SB) 1070 which requires state law enforcement to fully comply with federal immigration law, but it goes a step further by giving law enforcement much broader powers to stop, question, and require immigration or citizenship documents without a warrant.  Specifically, SB 1070 would require local law enforcement to determine—when “practicable”—the immigration status of a person.  Law enforcement is allowed to do this for “any lawful stop, detention or arrest” in “the enforcement of any other law or ordinance” or “if reasonable suspicion exists that the person is an unlawfully present alien.”  The bill also goes on to prohibit law enforcement from “considering race, color or national origin in implementing the requirement for determining and verifying immigration status, except to the extent permitted by the U.S. or Arizona Constitutions.”  SB1070 prohibits law enforcement from “adopting or implementing policies that limit immigration enforcement to less than the full extent permitted by federal law, and allows a legal Arizona resident to bring an action in superior court to challenge an official or agency that does so.”   Lastly, the bill makes it a state offense (in addition to any violation of federal law) for “willful failure to complete or carry an alien registration document if the person is in violation of a related federal law.”

It is standard police procedure to inquire into the immigration status of those they encounter or arrest in the normal course of criminal investigations, but SB1070 would legally require law enforcement to check the immigration status of anyone who presents “reasonable suspicion” of being an illegal immigrant, but then they are also explicitly prohibited from using racial profiling.  So what exactly does “reasonable suspicion”–or an illegal immigrant–look like?   Not even Governor Jan Brewer knows.  I do not see how law enforcement can comply with the conflicting requirements set out by this law.

SB1070 presents several serious legal problems.  First among them is that SB1070 violates the Supremacy Clause of the U.S. Constitution, which in lay terms declares that the laws, constitution, and treaties of the federal government to be the Supreme Law of the land, regardless of state laws to the contrary.  Essentially, this means that any law passed by any state that violates existing federal law is invalidated and illegal.  This alone should be enough for SB1070 to be overturned upon appeal.  It’s not very sexy or controversial but I would be surprised if the appeals court did not cite the violation of the Supremacy Clause in their decision.  But this is just the beginning of how awry the state of Arizona has gone.

SB1070 could also easily violate the Fourth and Fifth Amendments of the Bill of Rights.  The Fourth Amendment protects citizens from illegal searches and seizures of their “persons, houses, papers, and effects” and requires the issue of warrants based on probable cause specifying “the place to be searched, and the persons or things to be seized.”  The Fifth Amendment protects citizens from self-incrimination (you cannot be compelled to testify against yourself), requires indictment by a Grand Jury before prosecution, bars Double Jeopardy, bars the seizure of private property for public use without just compensation (Eminent Domain), and states that no one will be “deprived of life, liberty, or property without due process of law.”  Due Process of Law is generally taken to be a combination of the rights outlined in the Fourth and Fifth Amendments, but also encompasses what is called Procedural Due Process and Substantive Due Process, the former relating to legal procedure (warrants, indictments, etc.) and the latter to fundamental rights (life, liberty, property, etc.) and requires the government or state to demonstrate a legitimate State interest in curtailing those rights.  Proponents of SB1070 and draconian immigration reform purport that because illegal immigrants are, well, illegal; they are not subject to the same rights and privileges of citizens.  However, if law enforcement were to stop and request papers and I.D. from a person who turned out to be a citizen–or a legal alien, or a naturalized citizen–then it would indeed be a grave violation of their rights.  Even if a person turned out to be an undocumented immigrant, do they not deserve basic human rights and protections under the law?

The problem is that illegal immigrants don’t all look the same.  The fear is that because the main concern over illegal immigration in Arizona is the immigration of Hispanics and Latin Americans crossing into the United States from Mexico, they would be disproportionately targeted by SB1070.  This makes it difficult to view SB1070 as anything other than legalizing racial and ethnic profiling, and the result of fomenting Nativist sentiment.  What makes this all the more galling is the perception that by rounding up and deporting illegal immigrants (which more and more seems to me to be euphemism for Latinos) the government would be reducing crime (this would be legitimate State interest), making the specious argument that there is a direct correlation and relationship between illegal immigrants and crime.  In fact the opposite is true.  Violent crime in Arizona is at its lowest rate since the 1970s, even while the immigrant population (legal and illegal) has grown in the last 30 years.  In fact, in 2008, Arizona experienced the largest percentage drop in the population of undocumented immigrants (18%), more than any other state.

While I understand the frustration of border states at the lack of coordination and enforcement of Federal immigration policy, SB1070 is not the solution.  It is not the job of local police to enforce border or immigration issues, and by placing such a burden on law enforcement it will decrease their ability to address real violent crime.  Additionally, SB1070 will expose law enforcement to lawsuits by citizens who feel they are not complying with it.  We need humane, comprehensive immigration reform, and we need to understand the causes of illegal immigration before we can successfully address it.   I think it is unlikely that SB1070 will stand as law, but the motives that propelled such legislation is truly disturbing.

2 Responses
  1. May 16, 2010

    Great job with this piece! I didn’t realize that they’re trying to link illegal immigration with the rise in crime while violent crime is at an all time low.

    “We need humane, comprehensive immigration reform, and we need to understand the causes of illegal immigration before we can successfully address it.” Absolutely. This *should* be common sense with most laws: we should know the root cause and be as humane as possible. Is illegal immigration illegal only because we make it so? Because of nativist sentiment, are we making it too difficult for naturalization? (Unless of course, they’re Cuban baseball players… or any athlete. Why do we make it easier for them than say someone dedicated to teaching the underprivileged?)

    I agree that there’s a huge risk at racial profiling here, too. And I absolutely agree that every single human should be given basic rights, especially under the 5th Amendment. What about others than Latinos though? I know that’s the main problem in Arizona, but I’m more worried about the continued profiling of Middle Eastern/South Asian immigrants who are deemed terrorists by race and not just petty criminals.

    I think that it was a hasty law that Jan Brewer signed without regards to consequences. But this is similar to recent abortion laws that have been passed: if they go to court, that can be a victory for them in publicity anyway. And that scares me, too.

  2. Jacqueline Moss permalink
    May 18, 2010

    Thanks for the comment Meg! I specifically focused on Latinos and Hispanics because that is what is most pertinent in the case of Arizona. Profiling (be it racial, ethnic, religious, etc.) is and always will be a risk when balancing security and civil rights, and it is a huge issue not just for Latinos and Hispanics, but for Muslims, Arabs, and Southeast Asians. Profiling doesn’t work because not all Latinos are illegal immigrants, and not all Muslims are terrorists. Two quotes come to mind when I think about it:
    “Nobody ever looks like Joe McCarthy. That’s how they get in the door in the first place.” (Toby Ziegler, The West Wing)
    “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” (Benjamin Franklin)

    I think SB1070–and the recently signed bill that bans Chicano Studies–is the result of festering anger and frustration (and a streak of anti-immigrant hate) at the Federal Government’s impotence when it comes to regulating immigration and enforcing existing law. However, I think Jan Brewer knew exactly what she was doing, and it was a calculated political move. But maybe I am just too much of a hardened cynic when it comes to politicians.

Comments are closed.