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Arizona’s immigration law is constitutionally troubling


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Arizona’s immigration law is constitutionally troubling

6:00 am May 3, 2010, by Bob Barr

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.

There are any number of federal laws and responsibilities that do not receive the attention many citizens and state governments believe they should; but this is hardly reason to jettison constitutionally-sound principles of federalism, and open the floodgates to states assuming federal functions.

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.

The new law includes many other provisions troubling because of their vagueness and breadth. For example, a person is subject to arrest without a warrant if an officer has probable cause to believe the person has committed an offense that makes them “removable from the United States.” Determining exactly which offenses make someone “removable” is hardly an exact science. But, insofar as being in the country unlawfully subjects one to “removal,” this provision in the law becomes completely circular.

Hopefully, the federal courts will quickly avail themselves of the opportunity to determine the constitutionality of this Arizona law. And hopefully, they will find its exceptionally broad grant of police detention powers to be unconstitutional. If not, it won’t be long before the same powers are sought and applied to other areas in which police agencies want to enhance their ability to detain and question individuals. Once released, this genie will not easily be returned to the bottle

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Arizona’s immigration law is constitutionally troubling

6:00 am May 3, 2010, by Bob Barr

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.

There are any number of federal laws and responsibilities that do not receive the attention many citizens and state governments believe they should; but this is hardly reason to jettison constitutionally-sound principles of federalism, and open the floodgates to states assuming federal functions.

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.

The new law includes many other provisions troubling because of their vagueness and breadth. For example, a person is subject to arrest without a warrant if an officer has probable cause to believe the person has committed an offense that makes them “removable from the United States.” Determining exactly which offenses make someone “removable” is hardly an exact science. But, insofar as being in the country unlawfully subjects one to “removal,” this provision in the law becomes completely circular.

Hopefully, the federal courts will quickly avail themselves of the opportunity to determine the constitutionality of this Arizona law. And hopefully, they will find its exceptionally broad grant of police detention powers to be unconstitutional. If not, it won’t be long before the same powers are sought and applied to other areas in which police agencies want to enhance their ability to detain and question individuals. Once released, this genie will not easily be returned to the bottle

I could not possibly agree more with this article. This law could really be a pandora's box.

Ben Franklin- They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

We on this continent should never forget that men first crossed the Atlantic not to find soil for their ploughs but to secure liberty for their souls. ~Robert J. McCracken

For what avail the plough or sail, or land or life, if freedom fail? ~Ralph Waldo Emerson

He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty he establishes a precedent that will reach himself. ~Thomas Paine

Dramatic, I know, but each is true.

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I could not possibly agree more with this article. This law could really be a pandora's box.

Ben Franklin- They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

We on this continent should never forget that men first crossed the Atlantic not to find soil for their ploughs but to secure liberty for their souls. ~Robert J. McCracken

For what avail the plough or sail, or land or life, if freedom fail? ~Ralph Waldo Emerson

He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty he establishes a precedent that will reach himself. ~Thomas Paine

Dramatic, I know, but each is true.

+1, could not agree more.

I definitely don't want to establish this precedent.

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Although I do not like everything about this bill I do think that AZ and many other states are at a point where something has to be done and the Fed gov. has not done enough!

I also am a little sick of seeing protest signs that say things like....I am illegle but I have rights!.....Illegle Day Laborers Unite....I am illegle but I am not a criminal... fact of the matter is, if you are here illegally then you do not have the rights that American citizens have and you are a criminal because you have broken the law. I have NO PROBLEM with immigrants who legally come to this country! Diversity is one of the reasons that the U.S. is so great! <_<

Edited by falconmaniac
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"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"

Even Barr has it wrong. It's crap like this (misinformation) that portrays the new law so negatively.

what is Barr wrong about?

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Although I do not like everything about this bill I do think that AZ and many other states are at a point where something has to be done and the Fed gov. has not done enough!

I also am a little sick of seeing protest signs that say things like....I am illegle but I have rights!.....Illegle Day Laborers Unite....I am illegle but I am not a criminal... fact of the matter is, if you are here illegally then you do not have the rights that American citizens have and you are a criminal because you have broken the law. I have NO PROBLEM with immigrants who legally come to this country! Diversity is one of the reasons that the U.S. is so great! <_<

I agree with everything you said. But the devil is in the details. It seems to me that the main focus should be on inspecting the legitimacy of workers at their place of employment. If illegals are found there, then they are deported, and the company pays a hefty fine; especially if it can be proven that the company did not attempt to ascertain the legitimacy of the workers prior to hiring them.

Doing this would have the effect of cutting the supply of jobs available to illegals, which should lead to a reduction in the number of people seeking to come here illegally seeking employment.

For companies that habitually break the law, the owners of the company should be forced to serve time in prison.

I wonder how much of the lax attitude demonstrated by the federal govt is because of the perception, or reality, that American workers would not accept the jobs that are filled by illegals? If that is the cause, then I think shutting down a few of those companies would allow the strongest of them to prosper greatly and in turn pay higher wages to those who do the work. It would be a little painful to go through the process, but it should result in a better environment for the employers and employees that survive.

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It does not give police the right to stop someone to check for legal status. They can ONLY ask for identification and supporting immigration papers (which the US Government requires they carry anyways) if they have stopped them for another legitimate infraction and then have a legitimate suspicion that they may be here illegally.

that's funny b/c i have the text from the law open on another tab and it says nothing about stopping them for another legitimate infraction.

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY

21 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS

22 STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS

23 UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,

24 WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE

25 PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT

26 PURSUANT TO 8 UNITED STATES CODE SECTION 1373©.

what is lawful contact? passing by on the street? what is reasonable suspicion that a person is an alien? brown skin and black hair?

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I agree with everything you said. But the devil is in the details. It seems to me that the main focus should be on inspecting the legitimacy of workers at their place of employment. If illegals are found there, then they are deported, and the company pays a hefty fine; especially if it can be proven that the company did not attempt to ascertain the legitimacy of the workers prior to hiring them.

Doing this would have the effect of cutting the supply of jobs available to illegals, which should lead to a reduction in the number of people seeking to come here illegally seeking employment.

For companies that habitually break the law, the owners of the company should be forced to serve time in prison.

I wonder how much of the lax attitude demonstrated by the federal govt is because of the perception, or reality, that American workers would not accept the jobs that are filled by illegals? If that is the cause, then I think shutting down a few of those companies would allow the strongest of them to prosper greatly and in turn pay higher wages to those who do the work. It would be a little painful to go through the process, but it should result in a better environment for the employers and employees that survive.

I would love to see that

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They should have it where if you can't speak English, you need to prove that your here legally, doesn't matter if your French, German, Russian, Asian, Hispanic.

sigh

in America you should be able to speak any language you want. If you can get by only speaking Dutch then by all means go for it.

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It does not give police the right to stop someone to check for legal status. They can ONLY ask for identification and supporting immigration papers (which the US Government requires they carry anyways) if they have stopped them for another legitimate infraction and then have a legitimate suspicion that they may be here illegally.

But then the definition of "legitimate infraction" comes into play and would be stretched to cover anything possible. It's a bad law that needs to be killed. The Federal Govt needs to step up and do the job here. Maybe a good thing can come out of this situation and it will force the Feds to actually deal with the issue. If so, then that would likely be the only good thing to come of it.

Too many politicians worrying about their own future and the fear of offending the rapidly growing Latina population, which is projected to become a much larger portion of the voting public over the years. Simply enforce the existing laws; because from what I've heard many of the legal aliens are also supportive of tightening the boarders since illegals take jobs from them as well.

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sigh

in America you should be able to speak any language you want. If you can get by only speaking Dutch then by all means go for it.

besides, there is a large percentage of Americans who can't speak English worth a **** so it would be hypocritical to hold it against immigrants <_<

my wife and her two younger sisters speak English better than most of the people in my vocational school

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They should have it where if you can't speak English, you need to prove that your here legally, doesn't matter if your French, German, Russian, Asian, Hispanic.

Careful there; you might get hit by "friendly fire". :lol: :P

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sigh

in America you should be able to speak any language you want. If you can get by only speaking Dutch then by all means go for it.

If you live here, people need to at least learn the basic English reading and some English to get by. People need to learn our road signs, how are they going to know the rules when they can't read "Yield" or "Stop"

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The "lawful contact" is the key. I believe they are changing the wording to say "lawful stop, detention or arrest" so that it is absolutely clear, though it means the same thing.

bob barr isn't commenting on a future law. he is commenting on what the current text of the bill says and I agree with his interpretation as it exists now. would you agree?

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If you live here, people need to at least learn the basic English reading and some English to get by. People need to learn our road signs, how are they going to know the rules when they can't read "Yield" or "Stop"

people can learn the signs without learning the words

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If you live here, people need to at least learn the basic English reading and some English to get by. People need to learn our road signs, how are they going to know the rules when they can't read "Yield" or "Stop"

One would think they couldn't pass the driving test.

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People that sticks up for illegals make me sick so they can "friendly fire" me all they want. I spoke my opinion.

it's not sticking up for illegals it's sticking up for unreasonable infringement of government on a legal citizen's bill of rights.

look how this law is worded and think about how it can be used or abused.

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