Arizona law won’t hold up in court

By Luis A. Velez

Arizona’s SB 1070 is an attempt by that state to use criminal sanctions to reduce illegal immigration. Sadly, it reprises a familiar two-step ranchera dance in terms of America’s poor treatment of Mexicans. Due to the need for cheap labor, Mexicans were brought here to perform menial jobs that whites preferred not to perform, such as farm work.

However, during periods of economic stress, immigrants in the United States have been subjected to crackdowns on illegal immigration and repatriation.

With unemployment hovering near 10 percent, Mexicans are seen as competing with whites for scarce jobs. This has led to calls for the expulsion of undocumented workers and the tightening of the border.

In addition to economics, in a post-9/11 world, the justifications offered for SB 1070 include traditional state police power interests: to protect the safety, health and welfare of Arizonans by cutting the flow of illegal immigrants into Arizona and reducing the number of illegal Mexicans in the state so they cannot commit crimes against Arizonans.

These are compelling interests, but since they are federal, not state, matters, I believe they render SB 1070 unconstitutional.

The supremacy clause of the U.S. Constitution states that federal law preempts, or “trumps,” state law. SB 1070 requires Arizona officials to question people about their immigration status “where reasonable suspicion exists that the person is an alien.”

But under Article 1, Section 8 of the U.S. Constitution, regulation of immigration and national borders are federal, not state, matters. Thus, requiring local law enforcement officials to check on the immigration status of people will be found unconstitutional.

In addition, requiring Arizona officials to question people about their immigration status opens Arizona law enforcement officials to charges they will use racial profiling in determining who to ask for papers.

Arizona Gov. Jan Brewer famously hemmed and hawed during an interview when asked what an illegal alien looks like and how she would describe one to officers in training to determine who is an alien.

Although a companion bill contains an anti-racial profiling provision, since it is impossible to visually determine if a person is here illegally, one can imagine Mexican-American citizens being unjustly detained, regardless of their citizenship status, because they were profiled as “Mexican,” and simply did not have identification papers on their person.

Numerous studies have demonstrated the extent to which there is a correlation between discretion by police officers and their use of racial profiling to arrest disproportionate numbers of people with brown skin.

Also, since the law requires officials to check a person’s immigration status, citizens may be detained while that inquiry is made.

This will lead to additional Fourth Amendment and equal protection suits as Mexican- Americans claim they were illegally detained, and other Arizonans are not subject to detention for a citizenship check.

SB 1070 also will cause deep racial divisions, as in Prince William County, Va., which passed a similar law in 2007 that required local law enforcement officers to inquire into the citizenship status of detainees based on “probable cause.”

The harassment caused by the law led to a mass exodus of Latinos, both legal and illegal, which caused the community to suffer a devastating loss of business, tax revenues and property values; and a huge spike in housing foreclosures, all of which led county supervisors to drop the law in months.

Luis A. Velez is a magna cum laude graduate of Georgia State University College of Law.