In continuation of my Wednesday series on controversial topics – today I am going to examine the Arizona immigration law section by section and my thoughts on it. Before I do, I want to make my bias clear:
1. I believe that undocumented workers are an economic engine in this country. The New York Times had an interesting piece in 2005 on the immigrant’s contributions to Social Security. The The Congressional Budget Office concluded in 2007 that 50% - 75% of undocumented immigrants pay federal, state and local taxes. As a counter point, a number of studies have indicated immigrants are a larger drain on social resources than they are contributors to tax revenue. I agree with Ernesto Zedrillo’s opinion - this drain occurs because the other 25 – 50% of immigrants don’t have a viable way to pay taxes since they are relegated to the cash economy.
2. I believe it is for this reason that both Democratic and Republican Administrations have had some level of tolerance for an undocumented workforce.
3. I believe comprehensive immigration reform is needed in this country and that it must include an amnesty process. (More on this is a future blog)
Now to Arizona. I am assuming that the true intention of the Arizona law is to ensure compliance with current Federal immigration law as the preamble of the legislation states. I actually don’t have a problem with this. My problem is with the federal law. If all Arizona is trying to do is comply with the federal law, then how can we really be mad? Our anger should be directed toward federal policies. However, as I indicate below, I believe the method Arizona has used enters dangerous territory far beyond the federal law.
Here we go:
Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by adding article 8, to read:
ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS
11-1051. Cooperation and assistance in enforcement of
immigration laws; indemnification
A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR
OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.
On the surface this looks good, no government can adopt a policy that limits or restricts the enforcement of federal immigration laws. However, this creates a huge financial issue for local governments. Many local governments have undertaken a policy (either written or understood) that they will not actively pursue investigations to seek out undocumented workers because of the resources it takes.
Title 11 Article 8 Section 2 (B): “FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).”
This is way too much reasonableness and creates too much liability for local governments. Hear me out. The reasonable standard will be tried over and over again and this will consume whatever resources these sub-divisions have. What a new park? How about a fire department? Nope, all the money is going to the immigration lawsuits.
What does “reasonable suspicion” mean anyway? Given that most lawful contacts made by enforcement agencies don’t involve lengthy conversations about where the person grew up and we don’t have a national language, most people have rationally interpreted this to mean that these agencies are legally required to make a “reasonable” judgment based on the person’s physical attributes. Here is the root of the claims of racial profiling. For an issue so volatile and likely to result in substantial litigation, the legal requirements should be crystal clear. The police either have to question everyone about their immigration status or they don’t. It’s either very clearly a police state in Arizona or it’s not. We force people to wear patches on their shirts indicating their immigration status or we don’t. Have I made it clear that I think it is inappropriate to question anyone who has not been accused of a violation of the civil or criminal code about their immigration status - given the national tolerance for an undocumented workforce? And for those you who say “What tolerance?? People are rising up against immigration! Arizona is only the first.” I ask you, “Did you question your dry cleaner, your local restaurants – both fancy and fast food, your lawn service, your nanny/day care provider, your local bank, your contractor about their hiring practices?” If not, I submit that you have some tolerance.
C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.
They serve their time here and then we deport them. This seems to be how the system works. I think it is a little strange that we would spend our taxpayer resources “rehabilitating” (because that is the goal of the prison system- right?) folks who don’t have the legal approval to be in this country, but hey, that’s another blog – right?
D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT AGENCY.
I have to claim ignorance here. I can’t figure out why this section is needed and I haven’t been able to find a clear explanation. Maybe one of my trusty readers can help me out. Was there an issue in Arizona with law enforcement officials being able to transport person unlawfully present in the USA?
E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
Now we are getting into a serious danger zone in my opinion. The key words here are “without a warrant”. Obtaining an arrest warrant is an important component of our justice system. It’s a double check between our law enforcement branch and our judicial branch to make sure that we have the right person and a reasonable amount of evidence to show they "probably caused" the alleged violation. Stripping this step from the process is a huge problem for me. Note that the section says nothing about the immigration status of the person being arrested. I believe this section is unconstitutional for that reason.
F. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:
1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS STATE.
2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.
3. CONFIRMING THE IDENTITY OF ANY PERSON WHO IS DETAINED.
4. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.
Okay, this makes some sense to me given Arizona’s goal. If someone is applying for a public benefit, service or license, asserting residency, needs to be identified, or is asserting a legal status, then officials should be allowed to verify.
G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND ATTORNEY FEES.
2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
Giving citizens a private right of action against local governments for enforcement of federal immigration laws spells disaster to me. It’s a waste of resources for these local governments to have to fight all these actions. Feel like your local county isn’t pursuing immigration stringently enough – elect a new County Commission. Don’t clog the courts with individual actions – especially when even the federal government doesn’t have the resources to enforce the federal immigration laws to their fullest extent.
Section H, I, J indemnify the officer for reasonable costs and specific where the money should be sent. The full text of the bill is available here.
The new law also makes it illegal to:
- Hire an undocumented worker
- Solicit work if you are in the country without authorization
- Be present on public or private land if you are in the country without authorization
- Transport an undocumented person
The changes highlighted above are the most significant aspects of the bill as I believe they create constitutional issues and will have a detrimental impact on the ability of local governments to govern and provide services. This bill goes far beyond just enforcing our federal policy and for that reason, I oppose it.
What do you think?