REFLECTIONS ON THE ARIZONA IMMIGRATION LAW
Susie L. Hoeller, J.D.
May 26, 2010
Introduction
On April 23, 2010, the Arizona Governor signed into law, the “Support Our Law Enforcement and Safe Neighborhoods Act” (“S.B. 1070”). Section 1 of S.B. 1070 sets forth the legislative intent as follows:
“The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”
The law is controversial but polls show that a slim majority of Arizonans and Americans support it. Several lawsuits have been filed attacking the law’s constitutionality. Arizona is being boycotted by groups opposed to the law. Politicians in at least twelve states are introducing similar legislation.
This article outlines the major provisions of S.B. 1070 and explains why I oppose it as a harmful policy.
Background
There can be no doubt that the U.S. government has failed to “secure the border” with Mexico either currently or in the past. The over 2,000 mile long border runs across deserts, mountains, and many sparsely populated areas.
The U.S. and Mexico trade goods and services worth over a billion dollars a day. More trade passes between the U.S. and Mexico in a day than is conducted between the U.S. and the European Union in a month. This does not even include cross-border tourism and foreign direct investment. Certainly, efforts to completely seal the border would choke off much of this trade, tourism and investment.
Due to poverty, governmental corruption and political instability in Mexico and Central America, millions of economic migrants have entered the U.S. without legal permission in recent decades. U.S. immigration laws have not afforded sufficient legal avenues for this large scale migration.
Recently, drug cartels and human traffickers have been murdering, raping and robbing people on both sides of the border. This criminal activity is similar to what occurred during the 1920-1933 Prohibition Era, except that the illegal product was alcohol flowing across the Canadian border.
Many Americans have legitimate fears that terrorists can enter the country through Mexico. They believe that undocumented immigrants are crowding medical facilities and schools at U.S. taxpayers’ expense. Many are concerned that illegal immigration undermines the rule of law. The increased criminal activity in border areas, including the recent murder of a prominent Arizona rancher, drove the Arizona legislature to pass S.B. 1070.
Summary of the Arizona Law
Everyone should read the 17 page law. The provisions which have stirred the most controversy are summarized below.
Reasonable Suspicion
The state and local police are to determine upon “reasonable suspicion” whether a person is in the country illegally. The law does not set forth any characteristics of illegal presence to aid the officers in making this legal determination. This is because there are no distinguishing characteristics reasonably available. How does one honestly tell the difference between an American citizen or legal resident of Hispanic ethnicity and a Mexican citizen unlawfully present? This is the heart of the concern that the naked “reasonable suspicion” standard will be used to engage in racial profiling of Hispanic individuals. Will the Arizona police reasonably suspect Poles, Koreans or Irishmen who are in the country illegally, having overstayed their student or tourist visas?
Warrantless Arrests
A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe a person has committed a public offense that makes the person removable (deportable) from the United States.
Cooperation
Arizona municipalities and political subdivisions can be sued by citizens for not enforcing this law and that fines collected for violations will be deposited in the Gang and Immigration Intelligence Team Enforcement Mission Fund. The Arizona legislature has linked immigrants with gangs which is demeaning to all immigrants since the vast majority of immigrants are not involved in gangs.
Trespass by Illegal Aliens
The law states that illegal aliens are guilty of trespass if they are present in Arizona and provides for fines and imprisonment with no suspension or commutation of sentences.
Smuggling of Human Beings
This provision provides felony penalties against human smuggling. However, this broadly written provision goes well beyond dealing with true human trafficking rings and criminalizes a person who transports an undocumented person to the store or the doctor.
Unlawful Stopping to Hire and Pick up Passengers for Work and Solicitation for Employment
This provision is meant to stop the hiring of day laborers at places like Home Depot. Soliciting labor is defined as “a verbal or nonverbal communication by a gesture or nod that would indicate to a reasonable person that a person is willing to be employed.”
Unlawful Transporting, Moving, Concealing, Harboring or Shielding of Unlawful Aliens
Social workers, medical personnel, attorneys, clergy and even Good Samaritans who aid an unlawful alien in need will be subject to criminal penalties.
Employing Unauthorized Aliens; License Suspension and Revocation
Businesses that employ illegal aliens will have their business licenses suspended or revoked and there will be fines and other penalties depending on whether the hiring was done knowingly. People may file anonymous complaints with the state when they suspect others are hiring illegal aliens.
Criticisms of the Law
The title of the law is the “Support Our Law Enforcement and Safe Neighborhoods Act. Where is the evidence that undocumented immigrants make neighborhoods unsafe by their mere presence? Ironically, police chiefs from all over America have stated that this law will increase crime since it will make immigrant communities fearful of reporting crimes.
The 2010 Arizona law is starkly reminiscent of the 1850 federal Fugitive Slave Act, under which suspected runaway slaves could be arrested without warrant and returned to a claimant based on his sworn testimony of ownership. American citizens who gave runaway slaves food, shelter or any other assistance were fined and imprisoned. Bounty hunters received rewards for capturing runaways and this encouraged some to kidnap free blacks and sell them to slave owners.
The Arizona law features Stasi-like encouragement of neighborhood spies and informers. S.B. 1070 is in conflict with the finest traditions of Anglo-American law dating from the 1215 Magna Charta which established the principles of due process of law prior to arrests of persons and searches and seizures of their property.
The Arizona law is an intrusion into exclusive federal jurisdiction over immigration and nationality law under the U.S. Constitution. I believe the courts will hold that several of its provisions violate the due process clauses of the 5th and 14th Amendments to the Constitution.
Conclusion
As a practicing attorney for the past 34 years, I understand the concern that many fair minded Americans have about the negative impact illegal immigration has upon the sanctity of the rule of law. I certainly believe in the rule of law as opposed to the alternatives of anarchy or dictatorship.
However, I believe that the crisis has been overblown because of lingering racist attitudes in many Americans’ hearts. Would this be such a crisis if every year thousands of Canadians entered the U.S. without legal papers?
Can we Americans become more empathetic? If we were born in poverty in Mexico or Central America would we stay there or would we move for a better life for our families, especially if our children were hungry and malnourished?
Have we ever thought about the lives of our immigrant ancestors? Do we realize that many born in Central and Southern Europe emigrated illegally since they were subjects of empires forbidding them to leave? These ancestors crossed borders without legal papers to reach free ports where they could board ships to America.
For all the states’ rights advocates who constantly rail against the federal government, here is a question for you. What if you had been a starving Oklahoman or Arkansan fleeing the 1930’s Dust Bowl and the state of California had closed its borders to you? Certainly, the penniless Dust Bowl migrants crowded the schools and hospitals of California when they arrived to start new lives.
Finally, think about the fallacious concept of “secure borders” in the 21st century. All of the 9/11 terrorists were in the U.S. legally. The air in California is fouled by emissions from Chinese coal plants. The BP oil spill will destroy fisheries and wildlife not just in Louisiana but in Cuba as well.
In a world where global financial transactions take place with a computer keystroke and with jet travel, climate change, environmental degradation, and diseases, there are no truly “secure borders.” Our security will be enhanced by how we Americans treat others in the world not by building walls and criminalizing economic migrants and those who come to their aid. Illegal immigration will not be stopped by punitive state laws which attack the foundational principles of our civil liberties.
The vast majority of undocumented persons from Mexico and Central America have been hard working contributors to our economy who have enriched our national life. We should provide a legalization process for them and focus law enforcement efforts on violent criminals, such as drug cartels. Under federal law, unlawful presence in the United States is not a criminal offense. In the meantime, we should be working with Mexico and Central America to build up their economies and strengthen their democratic institutions. This is the only policy that will significantly ease the emigration pressure.
Americans who cherish the civil liberties that generations of Americans in our Armed Forces and otherwise have sacrificed their lives to protect must organize to prevent the enactment of “Arizona” laws in other states.
Americans who look to the Holy Scriptures for guidance should study the numerous verses about how “aliens and strangers” must be treated along with the story of the exodus of Moses and the children of Israel, and the flight of Joseph and Mary with the infant Jesus from Herod’s massacre of the innocents. Of course, there are biblical passages about obeying the civil law. However, those passages do not override the consistent biblical themes of loving one’s neighbor and showing mercy to the oppressed, the poor, the alien, the widow, the child, and the prisoner.
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Susie L. Hoeller is the President of the American Center for International Policy Studies (www.amcips.org) and the author of IMPASSE: Border Walls or Welcome the Stranger, Bangor: Booklocker, 2008.