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Arizona’s Constitutionally Troubling Immigration Law

Bob Barr has a piece this morning in the Atlanta Journal-Constitution about the persistent Constitutional problems with Arizona’s new immigration law:

Arizona’s new immigration enforcement law, just days old, already is sparking challenges and extensive controversy. Most Republicans, including many self-proclaimed “conservatives” who might otherwise oppose expanding government police powers, have lined up squarely behind this measure. This is mystifying.

The law is fundamentally at odds with principles of federalism designed to reflect proper spheres of authority as between state and federal governments. It also is in conflict with traditional notions that the police are not permitted to stop and detain individuals based on mere suspicion.

Many supporters of this measure appear to have concluded that, since the federal government has not been sufficiently vigorous or consistent in its enforcement of federal laws against illegal immigration, it is perfectly permissible for the states to step up to the plate and take on this responsibility. Interestingly, this argument has rarely, if ever, been employed to justify states stepping into federal law enforcement shoes in any context other than immigration.

Protecting our borders is in fact a singularly federal function; reflecting the fundamental responsibility of the national government to protect our sovereignty. Traditionally, and appropriately, states have not been permitted to assume federal government functions; just as Washington should not be permitted to assert powers properly left to the states. This split of enforcement authority – while in modern times often not honored by the federal government – is codified in the Constitution, including in the Tenth Amendment.

Beyond the federalism issues — which in this case balance out in favor of the Federal Government rather than the states — Barr also notes that the law also places a disturbing amount of discretion in the hands of law enforcement, even in it’s amended form:

The vast and virtually unfettered power the new Arizona law grants local law enforcement to stop, question and detain individuals to determine if they are in the country lawfully, is even more troubling. But here also, many citizens, state legislators, commentators, and of course, members of Congress, appear far too ready to grant police this broad power simply because it purports to address the problem of illegal immigration.

While a number of Republican supporters of the Arizona law claim that its provisions would come into play only after a police officer had lawfully stopped an individual for another offense, the clear language of the law says otherwise. Under it, an officer need only have “lawful contact” with a person – which can be something as innocuous as passing them on the sidewalk – to provide the officer the justification to demand the person produce papers establishing their lawful status in the United States. The only predicate then required, is that the officer have a “reasonable suspicion” the person is an unlawful alien – based on what, the statute does not say.


As I’ve said over the past week, I find it somewhat astounding that a political movement that claims to distrust government is so willing to give so much unchecked power to the state.

Of course, if it’s not exercised against them, they probably don’t care.

2 Responses to “Arizona’s Constitutionally Troubling Immigration Law”

  1. Eric Petty says:

    Barr’s contention that “protecting our borders is in fact a singularly federal function…”is an attempt to place the Arizona situation into a Constitutional context. The true fact is that the Constitution is referencing a federal power of repelling invasion in that regard. Many would contend we are facing an invasion on our southern borders, but it is not the type of invasion envisioned by the Constitution. Therefore; I believe Arizona’s action does not violate the Constitution. My hope is that the focus of this law would fall upon the employers of illegal immigrants. If these employers would be fined severely when found to employ illegal immigrants then I believe the jobs when no longer be offered to the illegals. If the jobs disappear then the attraction to cross the borders would not be as strong. If this type of employer focused action could be attained without the new legislation, then I would prefer that action.

  2. James Young says:

    Well, the first problem with Barr’s piece (full disclosure: I interned in his office when he was U.S. Attorney for the N.D.Ga.) is that he seems to believe the moonbatosphere version of the law, rather than what it actually says. Nothing in the law says an individual can be stopped simply because a law enforcement official suspects he or she is an illegal alien; there must first be a primary offense (i.e., in most states, you can’t be stopped for not wearing a seat belt; but you can be cited for it if you’ve already been stopped for speeding, or reckless driving). A rather inauspicious beginning for what should be a reasonable and factual legal analysis.

    With that having been said, he may well be right about the federalism questions raised, though a similar scheme seems to have worked for Prince William County without challenge.

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