I wanted to write a diary on Arizona's new immigration law, but I wanted to analyze it in a way that was not politically motivated. (Although I'll say it right now that it is extremely flawed and possibly racist.) Instead, going over the four main provisions in the law, I decided to look at how it would stand up in a legal challenge.
I will say it right now: the Arizona state legislature is completely within the law on the provisions that it is a crime to be an illegal immigrant, as that crime has already been established by federal guidelines. The provision that requires all legal immigrants to carry papers is technically legal, although politically unwise.
However, the provision that is scariest is the one that requires police stop anyone if they have a "reasonable suspicion" that the person is an illegal. The problem stems from the "reasonable suspicion" clause. Where is it determined that "reasonable suspicion" exists and the police have the right to pull someone over? If they are engaging in obviously illegal activities, there is no question. But on a day-to-day basis, is there a limit to when the police can make that decision?
Imagine a scenario here: A man from Florida is visiting Arizona. His name is Xavier Suarez (Miamians will get that one). Near Tucson, he is pulled over for going too fast. An officer approaches his vehicle. When he gets there, he notices that Xavier looks an awful lot like an illegal immigrant, and so he asks Xavier for his papers. Unfortunately, Xavier has left his birth certificate at home in Florida, and his driver's license won't do it for the officer, so Xavier is cuffed and taken to jail, where he is held for several days until the authorities discover he is a citizen.
The potential amount of lawsuits for civil liberties against that part of the bill would be tremendous, especially if the police officers violate the rights to a speedy public trial and the right to an attorney. For these reasons, the provision of the bill violates the Constitution.
The last part states that citizens can sue the police if they feel they are not doing enough to combat illegal immigration. The Eleventh Amendment states that citizens cannot sue the states, but the question lies in whether local governments are protected by the same right. If they are protected, which would all depend on court interpretation, then that provision would also violate the Constitution.
In conclusion, while a lot of the effectiveness of this law depends on interpretation, several underlying principles may make this bill unconstitutional and thus require the state to rethink the fight on immigration.
That's all I've got for now. See you on the flip side. Brunner 2010.