|
Edition: June 2010
|
Homepage l
Contact
Arizona's Immigration
Law: A Testament to America's Warring Sovereigns
By: Vivek David
Arizona’s
latest immigration law, Bill 1070, has created a giant media stir south of
the border. It has even prompted a response from president Obama. The
controversial law allows police to investigate individuals whom they
reasonably suspect of being illegal immigrants. It also allows police to
arrest illegal immigrants without first obtaining a warrant.
Bill 1070 has been criticized as draconian and xenophobic in its treatment
if illegal immigrants. It may even make some nervous about traveling to
Arizona for fear of unforeseen penalties imposed by the new law. However,
many of the law’s toughest provisions will have little actual effect, they
are merely for show. Also, the law arises not from an opposition to illegal
immigrants but instead from a conflict between Arizona’s state and local
governments.
Although Bill 1070 contains provisions that seem tough on illegal
immigrants, in reality, these provisions have little actual effect. For
instance, the law allows police to investigate any individual provided they
have a ‘reasonable suspicion’ that the individual is illegally present in
Arizona . ‘Reasonable suspicion’ is an unwritten constitutional doctrine in
American jurisprudence. It requires that officers to have a ‘reasonable
suspicion’ of criminal activity prior to investigating an individual .
What is interesting about
the reasonable suspicion standard is that it is exactly the same standard
that Bill 1070 requires prior to an investigation of illegal immigrants.
Bill 1070 merely restates what was already the unwritten law of the land.
However, by restating this law only with regard to illegal immigrants, it
has created a frenzy amongst American reporters unfamiliar with the
‘reasonable suspicion’ doctrine.
Another provision of Bill 1070 which has caused a media sensation is the one
allowing police to arrest illegal aliens without a warrant . This provision
applies to individuals whom police have probable cause to believe are
illegally present in Arizona . Probable cause is a Constitutional doctrine
in American law. It comes from the text of the fourth amendment to U.S.
Constitution which forbids individuals from being arrested or warrants from
being issued without probable cause .
While warrants are preferred prior to making an arrest, they are not an
absolute requirement. The United States Supreme Court has ruled that
warrantless arrests are legal – provided that there is sufficient probable
cause to believe that a crime is being committed prior to the arrest . The
court stated that it will merely scrutinize warrantless arrests more than it
would arrests made with a proper warrant. Again, this provision does nothing
to change the law; it merely restates the existing law.
Finally, there is the much written about trespassing provision of the
immigration bill . This provision decrees that anyone illegally present in
Arizona is trespassing. It sets a fine of 500 dollars for the first offense
and 1000 dollars for repeat offenses . This provision although tough is
difficult to enforce – it is unlikely that an undocumented individual will
pay this fine; also, most illegal immigrants tend to live in economic
poverty and simply would not be able to pay the fine.
Bill 1070 contains so many ineffective provisions because its primary goal
is not to combat illegal immigration. The goal is to resolve a conflict
between Arizona’s State government which is strongly opposed to local
immigrants – local governments support illegal immigrants and protect them
from Federal immigration laws. For example, the congressional research
service reported that the City of Chandler has policies that prevent local
authorities from prosecuting illegal immigrants or revealing their
identities to the Federal Government . Watchdog groups have accused Phoenix,
Tucson, and Mesa of having similar polices .
Arizona’s State government is helpless to prevent local governments from
protecting illegal immigrations. The reason for this lies in the structure
of the American political landscape. America’s system of government is based
on a separation of powers between Local, State and Federal governments. Each
level of government is regarded as its own separate sovereign operating
without interference from other levels of government.
Arizona’s state government
faces the risk of extreme political backlash if it were to interfere in
local politics.
Bill 1070 is designed to latest immigration bill is designed to combat local
government policies – while avoiding the potential political fallout. The
bill states that it exists to encourage cooperation between the Federal
Government and the various levels of State Governments to fight illegal
immigration . The law that contains three innocuously worded provisions that
impede the ability of local governments to protect illegal immigrants from
Federal laws
1) A provision that no local
government in Arizona may have a policy that limits the enforcement of
federal laws.
2) A provision that no local government in Arizona may restrict their
personnel from communicating with federal agencies with regard to an
individual’s immigration status .
3) A provision creating a right for ordinary individuals to sue a local
government that restricts Federal immigration laws .
These provisions do not regulate individuals – instead they are intended to
regulate local governments. They prevent local governments from protecting
illegal immigrants because by doing so, they would be restricting the
application of Federal immigration laws. Realizing such provisions would be
difficult for the state to enforce against local governments, the bill
includes a third provision which creates a right of private individuals to
sue local government entities in violation of the new law.
Ordinarily, meddling in local politics in this manner would result in a
backlash. However, Arizona’s state government has defused this backlash by
cloaking the bill in sensational, headline grabbing provisions that keep the
focus on illegal immigrants and away from it’s meddling into local politics.
Although this has caused a national backlash – it has spared a backlash in
Arizona where a tough stance on illegal immigrants is desired by many local
residents.
Bill 1070 is not as tough on illegal immigrants as it is on local
governments. It is not motivated by xenophobia, but rather as a response to
the protection that local governments offer illegal immigrants. It is not a
simple bill designed to rid Arizona of illegal immigrations but a complex
one with many facets and motivations.
About the Author:
Vivek David, is an
American-trained lawyer.
|
|
|
|
