New Arizona law may be unconstitutional

Arizona passed the most far-reaching illegal immigration law in U.S. history last week, igniting a new debate over the constitutionality of racial profiling.

The new law obligates Arizona police officers to pull over anyone who is “reasonably suspicious” of being an illegal immigrant, and arrest them if they do not have both a valid driver’s license and a birth certificate.  It also gives Arizona citizens the right to sue their local police departments if they think police aren’t doing enough to uphold the law.

Mexico immediately issued a travel advisory to its citizens after the law passed to use caution when visiting Arizona.  Hotels across Arizona have reported a wave of cancellation fees as thousands Hispanic Americans have launched a massive boycott against Arizona businesses. And San Francisco Supervisor, David Campos, plans to submit emergency legislation on Friday to call for a boycott against all businesses in Arizona.

One Arizona Sheriff, Clarence Dupnik, called the new law “racist,” “disgusting” and “unnecessary,” adding that he refused to enforce it.

“It’s just a stupid law,” he said at a press conference Wednesday.

In my opinion – the law is bluntly racist, and will eventually be ruled unconstitutional.



  1. * The Arizona law simply enforces existing federal laws. Now Arizona police can actually enforce laws that are already on the books. Obviously the reason for this is because the federal government is not enforcing the law effectively in Arizona. The new Arizona law simply states that violating federal immigration law is now a state crime as well. Because illegal immigrants are by definition in violation of federal immigration laws, they can now be arrested by local law enforcement in Arizona. No new actions. No new powers. No new nothing. Simply enforcing federal law, and absolutely nothing else.

    * The law only allows police to ask about immigration status in the normal course of “lawful contact” with a person, such as a traffic stop or if they have committed a crime. Before asking a person about immigration status, law enforcement officials are required by the law to have “reasonable suspicion” that a person is an illegal immigrant. The concept of “reasonable suspicion” is well established by court rulings. Since Arizona does not issue driver’s licenses to illegal immigrants, having a valid license creates a presumption of legal status. The same thing happens to me when I get pulled over, they ask to see my drivers license or identification card. This is not a new, radical concept or law. Police have been asking people for identification for many years.

    * The law prevents employers from hiring illegals, and prevents people from being hired as day labor off the street. This again is only allowing Arizona to enforce the federal law.

  2. If the Arzona law were re-written by omiting the phrase of “reasonable suspicion” so that everyone facing law enforcement would be required to provide proof of legal immigration status or citizenship, then o you think that the law would still be unconstitutional? Technically speaking, by re-structuring the law to require everyone– including white, hispanic, black, and asian individuals– to provide such proof, it would remove any concerns for the potential of racial profiling. And it would be no different than requiring a driver who get’s pulled over to provide a valid river’s license and vehicle registration, or a business cited for violations of workplace safety to provide valid oeprations permit.

    The federal government recognizes this as being the case, which is why they made no mention of the potential for racial profiling or of the law’s constitutionality when they filed a formal law suit against Arizona. Until there are actual incidents or racial profiling, you cannot charge the law as being unconstitutional, since it’s language expressively prohibits racial profiling.

    By way of an analogous example, the IRS can potentially audit someone based on racial profiling, if the tax auditor in charge of the case were to be racist… could it happen? Yes. Does the law permit this? No. Same goes for S.B. 1070. Could Arizona police racially profile someone when enforcing the law? Yes. Does the Arizona immigration law permit it? No.

    It’s no wonder, then, that the Federal Government did not officially challenge S.B. 1070 as unconstitutional because of any potential for racial profiling. It did so only in the media, but by not doing so at the courts, it has signaled to America loud and clear that this concern over racial profiling is no less unfounded than a concern about an IRS tax agent profiling someone racially. The issue is blatantly politicized.

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