An Analysis of Arizona’s Senate Bill 1070
An Analysis of Arizona’s Senate Bill 1070:
(Are We Fixing a Problem – and Inadvertently
Undermining the Constitution?)
_______________________________________________
Harry P. Friedlander
1837 S. Mesa Drive, Suite C-100
Mesa, Arizona 85210
(480) 926-0902
The United States Constitution was created to protect the liberties and the rights of all person present in this nation. A grand part of that role is to secure the rights of all people, even if it is against the wishes of the vocal majority that wishes to attain parochial goals. As James Madison warned in Federalist 10, “[w]hen a majority is included in a faction, the form of popular government…enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” With this in mind, our founders created our country to protect against the tyranny of the majority.
It is in this interest that the United States Constitution protects our inalienable rights, the very ones we sought to establish in our Declaration of Independence. These rights are now under attack in Arizona by Senate Bill 1070. A bill passed by what has been described as “a majority that wants to fix a problem without regard to the constitution”, and in spite of the fact that it harms many people.
It is from the concern stated above that this paper took shape and grew. This is a review of Senate Bill 1070, what it says, how the legislature failed in creating it, and how the United States Constitution invalidates it.
OVERVIEW OF THE PAPER
Senate Bill 1070 (“SB 1070”) is a law recently passed by the Arizona legislature and signed into law by Governor Jan Brewer. Among other things, this bill (1) allows police officers, upon reasonable suspicion, to request individuals to produce evidence of their legal presence in the United States; (2) makes it a state crime to be in Arizona while being an illegal immigrant; (3) create new laws against the employment of day laborers (under the guise of blocking a public driveway or highway); (4) creates stricter laws regarding the transportation, smuggling, and harboring of illegal immigrants; (5) imposes a duty on employers to keep employment verification records; and (6) establishes entrapment as a defense to crimes targeting the hiring of illegal immigrants.
Besides numerous constitutional shortfalls, this bill also contains failures in its creation. For example, in creating this bill a proper fiscal analysis was not completed because the analysis only looked at the direct and obvious impacts of the bill. The analysis did not go beyond a surface level analysis of the bill and was also partisan in the manner that it evaluated the bill. Most noticeably, the analysis failed to consider any possible negative repercussions of this bill. It did not take into account the costs that would be incurred by the state in defending the bill against legal attacks, it failed to take into account revenue that would be lost if this bill caused illegal and legal immigrants to leave the state, failed to consider the effect of the loss of the economic output of illegal immigrants, and failed to discuss that Arizona could possibly be hit with economic boycotts.
Additionally, there is disconnect between the motivations for the bill its likely effects. This bill was endorsed and supported on the basis that it would help to make Arizona safer. On multiple occasions, the governor and others have stated that SB 1070 will help to prevent crime caused by illegal immigrants. A review of the social science, however, shows that there is little connection between illegal immigration and crime. While illegal immigrants commit crime, they commit crime at levels no higher than any other demographic in the United States population. Some studies also suggest that illegal immigrants are less inclined to commit crimes because it would draw unwanted attention to them. Because there is no significant connection between illegal immigration and crime, this bill will not make Arizona significantly safer.
In addition to the failures leading up the passage of this bill, there are numerous legal issues raised by the bill, any of which could render it invalid. First, the portion of SB 1070 creating A.R.S. § 11-1051 requires there to be “reasonable suspicion” for a law enforcement officer to question someone about their legal status. Additionally, the crime of “willful failure to complete or carry an alien registration document” imposes that law enforcement officers cannot use race as a basis in the enforcement of this section, except as permitted by the United States Constitution. This raises two questions. (1) what does the United State Constitution say about use of race in the reasonable suspicion calculus and (2) what else can create reasonable suspicion? The answers to these questions are discussed below.
Perhaps the largest constitutional violation that this bill commits is that it is preempted by the United States Constitution. The United States Constitution is the supreme law of the land and no state or city can make a law that conflicts with it. If a state or city does make a law that conflicts with the law of the United States, it does not apply and is considered preempted. There are three ways that a law is preempted, (1) Express Preemption: if the explicit language of the federal law states that any similar state law is preempted; (2) Implied Field of Law Preemption: if the state statute makes law in an area of law that is completely occupied by the federal government, such that there is no room for the States to supplement it, it is preempted; and (3) Implied Conflict Preemption: if a state statute is in direct conflict with a federal law or prevents the objective of the federal law from being executed, it is preempted. In this particular case, while there is not express preemption, both theories of implied preemption are applicable. The federal government solely occupies the field of immigration policy and courts have found that this field of policy must be within the sole jurisdiction of the federal government. Additionally, inherently tied to immigration policy is the power of foreign relations. Any state level policies would directly conflict with the execution of federal immigration policy because it would in effect allow states to influence foreign policy. Upon these bases, there is a very strong case that the Arizona law in its entirety is preempted by the federal government.
Finally, this paper addresses the day laborer section of SB 1070. As discussed below, numerous courts have addressed the issue of whether states can impose additional sanctions above the federal law regarding the employment of day laborers. These courts have uniformly held that this is an area of law occupied by the federal government, thus the states have no power to pass any laws on the subject. On that basis, state level statutes regarding day laborer employment have been found to be unconstitutional. What is unknown if whether a court would apply these holdings in this context because SB 1070 was crafted so that it technically forbids the blocking of traffic while hiring a day laborer.
OVERVIEW OF SB 1070.
SB 1070 is a series of new laws and amendments to current laws made with the intent to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”
A.R.S. § 11-1051 is created. Under this section (1) during any lawful stop, detention or arrest; (2) made in the enforcement of any state, county, city or town law or ordinance; (3) if a law enforcement officer has reasonable suspicion to believe that a person is an alien unlawfully present in the United States (4) the officer must determine the immigration status of the person and verify it with the federal government. A person is presumed to not be an illegal immigrant if they can provide any of the following (1) Valid Arizona drivers license; (2) Valid Arizona non-operating identification license; (3) Tribal identification; (4) Any valid federal, state, or local government issued identification IF the issuing entity requires proof of legal presence for the issuance of the identification. This section also allows an officer, without warrant, to arrest a person if the officer has probable cause that the person has committed any public offense that makes the person removable from the United States. This status also allows for a person to bring a civil suit in the Superior Court if any official or subdivision of the state 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. The remedy for this violation is (1) attorney fees; (2) a civil penalty of $1,000 to $5,000 for every day that the policy was in place after the filing of the action.
A.R.S. § 13-1509 is created. This section makes a person guilty of “willful failure to complete or carry an alien registration document”, a class one misdemeanor, if they are present in the state and in violation of 8 U.S.C. § 1304(e), failure to have an alien registration card, or 8 U.S.C. § 1306(a), failure to register as an alien. This section does not apply to a person who maintains authorization from the federal government to remain in the United States. This crime is kicked up to a felony if the person is also found to be engaged in one of the enumerated other crimes. An amendment to this section in HB 2162 states that race, color, or national origin cannot be considered in the enforcement of this section, except to the extent permitted by the United States Constitution.
A.R.S. § 13-2319 (dealing with smuggling) is amended to state “Notwithstanding any other law, a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and [the smuggling section].
A.R.S. § 13-2928 is added. This section makes it unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up day laborers if the motor vehicle blocks or impedes the normal movement of traffic. Finally, it outlaws an illegal immigrant from applying for work, solicit work, or work as an employee or independent contractor in Arizona. It also makes it unlawful for the day laborer to be picked up. Violation of this section is a class 1 misdemeanor.
A.R.S. § 13-2929 is added. This section makes it unlawful for a person who is violation of a criminal offense to (1) transport an alien in this state if the person knows or recklessly disregards the fact that a the alien is here illegally; (2) conceal, harbor, an alien from detection; (3) encourage or induct an alien to illegally come to the state. Violation of this section is a class 1 misdemeanor and subject to a fine of at least $1,000. An amendment to this section in HB 2162 states that race, color, or national origin cannot be considered in the enforcement of this section, except to the extent permitted by the United States Constitution.
A.R.S. § 13-3883 is amended. Under this section a peace officer, without a warrant, may arrest a person if the officer has probably cause to believe the person to be arrested has committed any public offense that makes the person removable from the United States.
A.R.S. § 23-212 (knowingly employing unauthorized aliens) is amended. The amendment set up entrapment as a defense to knowingly employing unauthorized aliens.
A.R.S. § 23-212.01 (intentionally employing unauthorized aliens) is amended. Like the previous section, this amendment sets up entrapment as a defense to intentionally employing unauthorized aliens.
A.R.S. § 23-214 (verification of employment eligibility) is amended. The amendment requires employers to keep a record of their verification for the duration of the employee’s employment or at least three years.
A.R.S § 28-3511 (removal and immobilization or impoundment of vehicle) is amended. This amendment allows the removal and either immobilization or impoundment of a vehicle if it is being used to transport, harbor, conceal, an illegal immigrant or attempts to do any of those actions.
A.R.S. § 41-1724 is created. This section created the gang and immigration intelligence team enforcement mission fund. The purpose of this fund is to provide money for gang and immigration enforcement and for county jail reimbursement costs related to illegal immigration.
FISCAL ANALYSIS
For numerous reasons, without even considering the legal consequences of this bill, we can see that the state legislature acted negligently in passing the bill. The first way we see this is that a proper fiscal analysis of the bill was not performed.
Prior to the implementation of SB 1070, a fiscal analysis was performed by Kimberly Cordes-Sween. Ms. Sween’s analysis is negligently incomplete. The analysis cites as direct impacts of this bill (1) the additional costs incurred because of detaining additional illegal aliens in state prisons; (2) costs associated with providing state level law enforcement officers immigration training; (3) county prosecution costs; and (4) new revenue gained from the fines assessed by the new crimes. The analysis also cites as broader impacts (1) lower levels of immigration that would reduce participation in state-funded programs, which would then affect spending; and (2) reduced state revenues that would be offset if wages increase to remaining residents in an attempt to offset the overall decline in the labor supply.
It is apparent that this analysis is horribly incomplete and completely partisan. The greatest weakest of the analysis is that it fails to consider any possible negative repercussion of this bill. Many of the unstated costs of this bill were recently laid out by the Immigration Policy Center (“IPC”)[1]. The first is the cost of defending this bill. It should have been known at the time that this bill was debated in the state legislature that legal challenges were surely looming. Arizona is not the first entity to attempt to enact a policy dealing with immigration. For instance, Riverside, New Jersey attempted to pass an immigration law in 2007. By the time that the bill was rescinded the town had spent $82,000 in legal fees. An even more damning example is Hazelton, Pennsylvania, which found itself owing $2.4 million in attorney fees for challenges to the city’s “Illegal Immigration Relief Act.” Just as compelling as the cost of defending these policies is the fact that neither of these policies ever took effect. For the legislature to not even consider these potential costs is highly negligent.
[1] Available at http://www.immigrationpolicy.org/newsroom/release/how-much-will-arizonas-immigration-bill-sb1070-cost.
In addition to the costs of defending the lawsuits, the analysis seriously under estimates the financial benefit that immigrants provide to Arizona and that would be lost. According to the University of Arizona’s Udall Center for Studies in Public Policy, Arizona’s immigrant workers contributed an economic output of $44 billion in 2004, of which $29 billion was attributed to non-citizens.[1] Further, the total state tax revenue attributable to immigrant workers was an estimated $2.4 billion, of which $1.5 billion was attributable to non-citizens. Id. Balanced against the incremental fiscal costs of $1.4 billion spend on immigrants for education, healthcare, and law enforcement, immigrants in Arizona generated a net 2004 fiscal contribution to the state of about $940 million. Id. This study is not isolated in its findings that the presence of illegal immigrants results in a net fiscal contribution to the state. Studies in other border states have come to the same conclusion.
In Texas, the cost of education, healthcare, and incarceration of undocumented immigrants for the fiscal year 2005 was found to be $1.15 billion.[2] The state revenues gained from undocumented immigrants for the fiscal year 2005 was $1.58 billion. This resulted in a net 2005 fiscal contribution to the state of about $424 million. The study also found that undocumented aliens contributed an economic output of $17 billion in the 2005 fiscal year.
These numbers are significant and should not be marginalized in the manner that the fiscal analysis attempts to do. The loss of $44 billion in economic output and $940 million in fiscal contribution to the state is highly significant. It is doubtful that such a significant amount would be offset by citizens wage gains. The loss of this revenue now, while the state is in such a poor fiscal condition, would be particularly harmful for Arizona.
Finally, the fiscal analysis of the bill failed to even mention the possibility that Arizona could experience backlash from the rest of the nation based on this bill. While supporters are quick to contend that national impressions should not influence how Arizona crafts legislation, this position fails to recognize that Arizona is a member of an ever going globalized economy. Surely, citizens of this state can still recall the pressure the state felt when it failed to recognize the Martin Luther King Jr. holiday. Now, like then, groups across the nation are rallying against Arizona. Such boycotts already occurring include calls from members of the entertainment industry to cancel performances in Arizona, the cancelation and relocation of the annual conference of the American Immigration Lawyers Association, and calls of boycott from leaders of San Francisco, New York, Washington D.C., and the cancellation by Los Angles of contracts with Arizona companies worth an estimated $7.2. million. While at the time it may have been hard to quantify the effects of the backlash, it should have been recognized.
TRUTH ABOUT CRIME AND ILLEGAL IMMIGRATION
In addition to the fiscal analysis being incomplete, another failure in the mere creation of this legislation is that there is a disconnect between one of the main motivations of this bill and the likely result of the bill.
One of the rallying cries cited by Jan Brewer, Russell Pierce, and other supporters of the bill is that the bill is necessary to protect Arizona from the flood of crime caused by illegal immigrants. This contention simply is not true, and has been disproved time and time again by numerous studies.
In their study “Crime, Corrections, and California,[3]” Kristen F. Butcher and Anne Morrison Piehl take this issue head on. This study looks at data on the number of immigrants imprisoned and incarcerated and compared it to the applicable rates among similar members of other groups. The study showed “that the foreign-born, who make up about 35 percent of the adult population in California, constitute only about 17 percent of the adult prison population. Thus, immigrants are underrepresented in California prisons compared to their representation in the overall population.” The authors also found that when they expanded their focus to include all institution (prisons, jails, halfway houses) and focus on the population that is most likely to be in institutions because of criminal activity (men ages 18-40), that , in California, U.S.-born men have an institutionalization rate that is 10 times higher than that of foreign-born men (4.2% vs. .042%). Hence, the study concluded that immigrants are actually less likely to be the cause of crime than those born in the United States.
Michael R. Gottfredson, professor of criminology, law and society at the University of California, Irvine, has also written on this subject. His paper, “Crime, Immigration, and Public Policy” details the background surrounding the fear of immigrants and crime and provides a good summary of what other studies have shown about this relationship.[4] Concerning the general connection between immigration and crime Gottfredson states, “[T]he high quality studies that do exist uniformly point in the same direction…[r]egardless of the methodology employed to study the matter, the relation between the immigration rate and the crime rate seems negligible at best.” Id. at 5. Gottfredson also points to a review of data performed for the U.S. Department of Justice by sociologists Ramiro Martinez and Matthew Lee that concluded, “[a]lthough a host of reasons exists to expect that immigrants are high-crime prone, the bulk of empirical studies conducted over the past century have found that immigrants are typically underrepresented in criminal statistics.”[5] Gottfredson concludes by stating that “[a]lthough there is not an abundance of high quality research on the topic, the evidence provided by the social science community had at least been consistent over a lengthy period of time: the level of immigration has been unrelated to the crime rate in the United States.”
Outside of the relationship between immigration rates and crime rates, Gottfredson also discusses whether illegal immigrants are disproportionately responsible for the crime problem. Gottfredson points to a study by Frank Bean (examining the consequence of “Operation Hold the Line,” a major initiative by the Border Patrol in Texas to curtail illegal immigration) as the strongest evidence about the crime-rate consequences of illegal immigration.[6] As Gottfredson states, “[b]ecause the the policy shift was focused on curtailing illegal immigration into El Paso )and seemed to do so), it provided the opportunity for a quasi-experiment of such policies on crime.” The study on the results of this policy showed no large effect on crime.
While this is just a brief sampling of the public policy studies examining the connection between immigration and crime rates, the studies provide that the overall consensus is that there is a lack of a correlation between immigration and crime rates. This inevitable leads to the conclusion that despite the general belief that immigrants are responsible for a disproportionate amount of crime, that they in-fact do not have a great impact on crime more than any other sub-group of the american population. The Butcher and Piehl study further shows that immigrants are less likely to commit crimes than U.S. born individuals. Gottfredson explains the disincentive of immigrants to commit crimes as
[I]llegal immigrants have a strong interest in avoiding notice by state officials, especially the police. To the extent that such individuals are in the country to get a job and earn income committing crime would potentially bring unwanted notice and removal from the country. Individuals who are motivated strongly enough to experience the hardships of immigration and working illegally are unlikely to jeopardize their status by engaging in crime.
In terms of what this means for SB 1070, even if this policy were successful in removing illegal immigrants from Arizona, such a success would not result in a significant decrease in the Arizona’s crime rate. This is in direct contradiction with comments made by Jan Brewer in her motivations for signing this bill into law. If Brewer or Pierce truly had the intention of making Arizona safer in enacting this bill, and they had done research to discover what the social science had stated on this matter, they would have discovered that there was not a connection between the intent of this bill and the likely outcome. Instead, this shows that this legislation was likely passed for the purpose of making political headway without regards to consequence, both the internal intended consequences (making Arizona safer) as well as the external unintended consequences (boycotts and constitutional challenges) discussed above.
REASONABLE SUSPICION LAW
The first legal question that arises under this bill is the application of reasonable suspicion. SB 1070 creates a new law, A.R.S. § 11-1051. Under this law, “[f]or any lawful contact made by a law enforcement official or agency or 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.” Question arises, how does one apply the term reasonable suspicion in this context?
The Fourth Amendment “applies to all seizures of a person, including seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). To justify detaining a person for investigative reasons, an officer must be able to articulate specific facts which, together with rational inferences from those facts, reasonable warrant the suspicion that the defendant has committed, or was about to commit, a crime. State v. Killean, 184 Ariz. 164, 170, 907 P.2d 550, 556 (Ariz.App. 1995). An officer is entitled to reply on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and be capable of rational explanation.” U.S. v. Mariscal, 285 F.3d 1127 (9th Cir. 2002). The officer in question “must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Illinois v. Wardlow, 120 S. Ct. 673, 676 (2000). These facts and inferences taken as a whole, the totality of the circumstances must provide a particularized and objective basis for suspecting the particular person stopped of criminal activity. United States v. Cortez, 449 U.S. 411, 417-18 (1981).
The requirement of particularized suspicion encompasses two elements. See United States v. Cortez, 449 U.S. 411, 418 (1981). “First, the assessment must be based upon the totality of the circumstances. Second, that assessment must arouse reasonable suspicion that the particular person being stopped has committed or is about to commit a crime.” USA v. Montero Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000). The 9th Circuit Court of Appeals has rejected profiles that are “likely to sweep many ordinary citizens into a generality suspicious appearance.” Unites States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir. 1992). See also United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir, 1994)(holding that reasonable suspicion cannot be based on “broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped”). It is error for a police officer to rely on the hispanic appearance of a person as reasonable suspicion to make a stop, even for immigration based offenses. See USA v. Montero Camargo, 208 F.3d 1122,1131 (9th Cir. 2000) (holding “[i]n concluding that reasonable suspicion existed, both the district court and the panel majority relied in part on the Hispanic appearance of the three defendants. We hold that they erred in doing so.”). The court reasons, “reasonable suspicion requires particularized suspicion. Where, as here, the majority (or any substantial number) of people share a specific characteristic, that characteristic is of little or no probative value in such a particularized and context-specific analysis.” Id. at 1131-32. The 9th Circuit continued by stating “[t]he likelihood that in an area in which the majority — or even a substantial part — of the population is Hispanic, any given person of Hispanic ancestry is in fact an alien, let alone an illegal alien, is not enough to make Hispanic appearance a relevant factor in the reasonable suspicion calculus.”
LAW REGARDING INDIVIDUAL FACTORS
If law enforcement officers cannot use race as a basis for reasonable suspicion, what are some factors that can be used?
Nervous:
Courts must be wary of granting much weight to a law enforcement officer’s subjective observation that a defendant was nervous. United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994). “It is common knowledge that most citizens…whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness. Id. An Officer usually does not know the suspect and cannot reasonable evaluate whether the observed behavior is normal for that suspect. Id. Dramatic indications of nervousness may contribute substantially to a suspicion of criminal activity. United States v. Green, 52 F.3d 194, 199 (8th Cir. 1995) (See State v. Killean, 184 Ariz. 164, 907 P.2d 550, holding that a suspects hands shaking and face beginning to perspire is sufficient for reasonable suspicion)
Eye Contact
“[A]voidance of eye contract is consistent with innocent as well as criminal behavior.” State v. Robinson, 797 P.2d 431, 436 (Utah App. 1990). See United States v. Garcia-Camacho, 53 F.3d 244, 247 (stating that a driver’s failure to look at border patrol car is not a legitimate factor in determining reasonable suspicion since the opposite reaction, repeated glancing, can also be used to justify an agent’s suspicion, putting officer in heads I win tails you lose situation).
Attire
Court refused to find defendants attire supportive of reasonable suspicion because the attire itself was not inherently suspicion nor did the officer “testify from his drug interdiction training that attire such as defendant’s has been shown to be typical of drug couriers.” State v. Magner, 191 Ariz. 392, 398, 956 P.2 519, 525 (Ariz.App. 1998).
Traveling from a “source city”
This factor standing alone has no weight since very many innocent persons travel to and from source cities. State v. Magner, 191 Ariz. 392, 398, 956 P.2 519, 525 (Ariz.App. 1998). See Reid v. Georgia, 448 U.S. 438, 441 (1980) (stating that conduct typical of a “very large category of presumably innocent travelers” is a weak foundation for suspicion.) A persons explanation for being in a city can be considered, and an implausible explanation will strengthen a suspicion of criminal activity. See United States v. Malone, 886 F.2d 1162, 1164-65 (9th Cir. 1989) (finding reasonable suspicion, in party, on basis that suspect who arrived via airplane in Seattle from Los Angeles implausibly could not provide address for the aunt he was visiting.)
Dirty Car
A dirty car cannot be given weight for reasonable suspicion. See State v. Magner, 191 Ariz. 392, 956 P.2d 519 (Ariz.App. 1998) (refusing to give weight to a car what was externally dirty); State v. Lovegren, 829 P.2d 155, 158 (Utah App. 1992) (declining to give much weight to fact that suspects auto was cluttered with pop cans, beer cans, cigarette packages and ashes). Further, “the weakness of the ‘dirty car observation is illustrated by the fact that an officer’s suspicion can be aroused by a vehicle that looks ‘too clean’” State v. Magner, 191 Ariz. 392, 399, 956 P.2d 519, 526 (Ariz.App. 1998) (citing United States v. Baron, 94 F.2d 1312, 1319 (9th Cir. 1996)).
PROFILING – EQUAL PROTECTION
In addition to being against the 4th amendment, profiling is also against the equal protection clause of the 14th amendment and may open the state to liability. “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race..[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause” Whren v. United States, 517 U.S. 806 (1996). “To show a violation of the Equal Protection Clause, plaintiffs must prove that the defendants’ actions had a discriminatory effect and were motivated by a discriminatory purpose. Chavez v. IL. State Police, 251 F.2d 612 (7th Cir. 2001). To prove discriminatory effect, the plaintiffs are requires to show that they are members of a protected class, that they are otherwise similarly situated to members of the unprotected class, and that plaintiffs were treated differently from members of the unprotected class. See Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000); Johnson v. City of Fort Wayne, Ind., 91 F.3d922, 944-45 (7th Cir. 1996). The second part of the test is discriminatory purpose. “Discriminatory purpose implies more than intent as awareness of consequences. It implies that the decision maker selected or reaffirmed a particular course of action at least in part because of its adverse effect upon an identifiable group.” Chavez v. IL. State Police, 251 F.3d 612, 645 (7th Cir. 2001). Cases discussing profiling: Illinois v. Warlow, 120 S.Ct. 673 (2000); United States v. Montero Camargo, 209 F.3d 1122 (9th Cir. 2000); United States v. Leviner, 21 F.Supp.2d 23 (D. Mass 1998); Martinez v. Vill. of Mount Prospect, 92 F.Supp.2d 780 (N.D. Ill. 2000).
An equal protection challenge is highly factual and would be determined by the nuisances of every case.
POLICE POWER OF THE STATE
This is also a concern that this bill may be outside the police power of the state. “[T]he police power delegated by the state is not infinite and unlimited. The action taken there under must be reasonable, it must relate to the object which it purports to carry out, and it must not invade the fundamental liberties of the citizens. Warren v. Philadelphia, 382 Pa. 380, 115 A.2d 218 (1955); Otto Milk Company v. Rose, 375 Pa. 18, 99 A.2d 467 (1953). It must also be remembered that even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when the goals can be otherwise more reasonably achieved. See Shelton v. Tucker, 364 U.S. 479 (1960).
IMMIGRATION AND NATIONALITY ACT SECTION 287(g) /
FEDERAL PRE-EMPTION
The strongest legal argument against SB 1070 is that Arizona is preempted from acting in the field of immigration because it is within the sole jurisdiction of the federal government.
Under the Supremacy Clause (Article VI, clause 2) of the United States Constitution, “[t]he Laws of the United States…shall be the supreme Law of the Land;…anything in the constitutions or law of any State to the contrary notwithstanding.” Under this clause, any federal law trumps the states’ right to make any conflicting law. Further, a state or local law may fail under the Supremacy Clause even if it does not conflict with federally regulated conduct or objectives. If it appears that Congress intended to “occupy” the entire field of law, any state or local regulation is precluded. The United States Supreme Court in Pennsylvania v. Nelson, 350 U.S. 497 (1956), extensively discussed the concept of occupation. In that case, Pennsylvania created an anti-sedition statute that made it a state crime to advocate the violent overthrow of the United States government. The Supreme Court found that the Pennsylvania law was preempted on several grounds.
First, “the scheme of federal regulation [regarding sedition] is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Id. at 502. Looking at all the the federal laws regarding sedition in aggregate, “the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it” Id. at 504. The Court also points to Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597 (1915), that held “[w]hen Congress has taken the particular subject-matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.” Id. at 504.
Second, “the federal statutes touch a field in which the federal interest is so dominant that the federal system must be assumed to preclude enforcement of state laws on the same subject.” The court held that “[s]edition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts.” Id. at 505.
Finally, “enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program.” Id. In analyzing the Pennsylvania law, the Court found persuasive the fact that the federal government had made clear that any person suspected of sedition be reported to the Federal Bureau of Investigation so that they could be dealt with on the federal level.
The holding of Pennsylvania v. Nelson regarding the definition of preemption has been more clearly defined in recent cases. “Federal preemption can be either express or implied.” Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 863 (9th Cir. 2008). When a federal statute contains an explicit preemption provision, the court is to “identify the domain expressly pre-empted by that language.” Medronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996). “Implied preemption has two subcategories.” Chicanos Por La Causa, 558 F.3d at 863. The first is field preemption, where “the depth and breadth of a congressional scheme…occupies the legislative field.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). It does not matter if state law merely reasserts federal law, “any additions added by local government would be either in conflict with the law or a duplication of its terms — the very definition of field preemption.” Lozano v. City of Hazelton, 496 F.Supp.2d 477, 523 (M.D. Pa. 2007). The second is conflict preemption, which occurs when either “compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Chicanos Por La Causa, 558 F.3d at 863.
The the law is not silent on whether preemption applies in the context of immigration policy. The United States Constitution provides that Congress shall have the power “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. 1, sect. 8, cl. 4. Thus, “”[t]he power to regulate immigration – an attribute of sovereignty essential to the preservation of any nation – has been entrusted by the Constitution to the political branches of the Federal Government.” United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982). As the Valenzuela-Bernal court states, “[o]ne cannot discount the importance of the Federal Government’s role in the regulation of immigration.” Id. “For reasons long recognized as valid, the reasonsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.” Matthews v. Diaz, 426 U.S. 67, 81 (1976). “[T]he formation of [immigration] policies is entrusted exclusively to Congress [and] has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Galvan v. Press, 347 U.S. 522, 531 (1954). “Conversely, the individual states, or municipalities located in those states, do not have a strong interest in immigration.” Hazelton, 496 F.Supp.2d at 522. As the Supreme Court explained in Hines v. Davidowitz, 312 U.S. 52 (1941), “[t]he States enjoy no power with respect to the classification of aliens.” Instead, this power is “committed to the political branches of the Federal Government.” Matthews, 426 U.S. at 81. Lozano v. City of Hazelton provides a lengthy discussion why state and local laws regarding immigration must be precluded. In finding that the Hazelton law (addressing hiring and renting to illegal immigrants) preempted, the court explained:
In interior enforcement [of immigration] officials must strike a balance between finding and removing undocumented immigrants without accidentally removing immigrants and legal citizens, all without imposing too much of a burden on employers and workers. Too stringent of an enforcement system will result in the wrongful removal of United States citizens and legal immigrants. United States foreign relations is affected by the manner in which the balance is struck. Excessive enforcement jeopardizes our alliances and cooperation with regard to matters such as immigration enforcement, drug interdiction and counter-terrorism investigations. Accordingly, the United States political system places the responsibility for striking this balance with the United States Congress and the executive branch. In discussing the ordinances in the instant case, city council and major did not consider the implications of the ordinance on foreign policy. Their only concern, as might be expected, was for Hazelton.
Id. at 527-528.
Looking at SB 1070, there are a number of provisions that implicate preemption. These provisions include:
(1) “No official or agency of this state or a county, city, town or other political subdivision on 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.” A.R.S. § 11-1051(A).
(2) “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 law.” A.R.S. § 11-1051(G).
(3) “In addition to any violation of federal law, a person is guilty of trespassing if the person is both (1) present on any public or private land in this state. (2) In violation of 8 United States Code Section 1304(e) or 1306(a).” A.R.S. § 13-1509(A).
Additionally, the regulation of immigration is achieved under the United States Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et. al. The powers of immigration officers and employees are laid out in 8 U.S.C. § 1357. Subsection g of this section specifically states under what conditions state officers and employees and perform immigration officer functions. There:
the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision an to the extent consistent with State and local law.
Id. at § 1357(g). The argument here is that SB 1070 is pre-empted by the INA. First, there is an unlikely chance that SB 1070 will be found to be expressly preempted. There is no section within the INA that expressly preempts the state from creating laws regarding the enforcement of immigration law. Instead, it appears that there is a strong case that SB 1070 is implicitly preempted.
There is no doubt that the federal government has intended to occupy the entire field of immigration law. Just like the sedition laws discussed in Nelson, the scheme of federal regulation regarding immigration and naturalization is pervasive. These laws occupy a full title of the United States code and contain hundreds of sections. As shown above, the Courts already considers the field of immigration to be predominantly within the jurisdiction of the federal government. In only the limited context where there is a gap in the federal policy (as was the case with the hiring of illegal immigrants prior to the enactment of the Immigration Reform and Control Act), does a state level policy have a chance of surviving. This is not the case here. SB 1070 at its essence this bill creates new state crimes that arise out of people being illegal immigrants and allows state level officials to enforce the federal immigration laws. Hence, it acts both in creating new policy and, as proponents argue, in allowing Arizona officers to help enforce pre-existing law. First, as stated above, additions of local law that is duplicative of federal law is by its very definition field preempted. Hence, it makes no difference if this law merely reiterates already existing federal law. Furthermore, SB 1070 does not address any areas of law uncovered by federal law. The federal government through the Immigration and Nationality Act has extensively dictated who can enforce federal immigration laws and what crimes exist against individuals for being illegal immigrants. Further, Congress has specifically defined when state level actors can engage in immigration enforcement. Under 8 U.S.C. § 1357, the federal government alone has the authority to check the immigration status of suspected illegal immigrants. Under that code, this power is expressly granted to any “officer of employee” of the Immigration and Naturalization Service of the Department of Justice. These powers can only be exercised by state and local authorities if they have been granted under 8 U.S.C. § 1357(g). Hence, Congress has spoken and expressly limited states authority to act to 8 U.S.C. § 1357(g). Because federal jurisdiction occupies this field of law, Arizona is precluded from making immigration policy.
Further, this is a field Of law where the federal interest is so dominant that the federal system must be assumed to preclude enforcement of state laws on the same subject. While immigration may effect the individual states, immigration itself is a problem of the United States as a whole. Entering illegally is not an crime against any particular state, but all states, against the United States as a whole. As such, it should be enforced and prosecuted by the Federal authorities and in Federal court. As discussed by the court in Hazelton, immigration policy is special in that it requires a balancing of enforcement and balancing a burden those here legally. Immigration policy also implicated foreign relations. The balance must be struck right so that United States foreign relations are not affected by its immigration policy. If the balance is tipped too far in favor of enforcement, our alliances with other countries become jeopardized. Hence, immigration policy must be left solely in the hands of the federal government because it alone can best consider the implications of foreign policy.
Conflict pre-emption exists as well. SB 1070 permits state level actors to impede on federal legal jurisdiction. Outside of providing proof of the extensive occupation of the federal law in immigration policy, 8 U.S.C. § 1357(g) also states the only way that state actors can perform immigration officer duties. If Arizona officials are allowed to act under SB 1070, then 8 U.S.C. § 1357(g) would essential be rendered ineffective in Arizona. Conflict preemption prevents SB 1070 from trumping 8 U.S.C. § 1357(g). Finally, allowing this Arizona law to run parallel to the federal law would stand it the way of the execution of federal law. This is no more apparent in that the Arizona law does not take national interests into mind. This law was created solely for the benefit of Arizona, without regard to national or world perception. This is in direct conflict with immigration laws status as affecting foreign relations. Because allowing Arizona to craft immigration policy would stand in the way of the execution of federal immigration policy, it is conflict preempted.
The tests for implied pre-emption are met. Field preemption exists because immigration is a legislative field that is controlled completely by federal statute. SB 1070 attempts allow state officers to enforce federal immigration law and creates new crimes for the sole act of being here illegally. The INA has already specifically dealt in both of these areas and leaves no room for Arizona to supplement it. Hence, the field of law that SB 1070 attempts to enter is clearly one where the depth and breadth of a congressional scheme occupies the legislative field. Preemption must exist because the close relationship between immigration policy and foreign policy requires that the federal government alone craft legislation that protects the interests of the whole country. Further, one could argue that conflict preemption exists as well because 8 U.S.C. § 1357(g) and SB 1070 are in direct conflict. SB 1070 allows state officers to perform functions of an immigration officer without regard to 8 U.S.C. § 1357(g). Finally, Arizona crafted this legislation with Arizona’s interest in mind. It does not take into consideration the foreign policy implications of the law. Accordingly, it stands in the way of the execution of federal immigration policy. For these reasons, SB 1070 is implicitly preempted by federal law.
DAY LABOR PROVISIONS
SB 1070 also attempts to create legislation regarding the use of day laborers. Under the law, “[i]t is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” A.R.S. § 13-2928(a). Further, “[i]t is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” Id. at § 13-2928(b).
In Lozano v. City of Hazelton, 496 F.Supp.2d 477 (M.D. Pa. 2007). the court held that the federal Immigration Reform and Control Act of 1986 (“IRCA”) expressly preempted the employment provisions Hazleton’s ordinances that prohibited the hiring of day laborers. The IRCA contains an express pre-emption clause that pre-empts state or local laws dealing with the employment of unauthorized aliens. This clause states “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). The court rejected the contention that Hazleton’s ordinance requiring suspension of an employer’s business license fell within the language of the statute allowing sanction through licensing and similar laws. Additionally, the court held that the employment provisions were implicitly pre-empted under the concepts of field pre-emption and conflict pre-emption.
Here, this law is an attempted to sidestep the ruling in Hazelton. The law prohibits blocking traffic on a public road in hiring a day laborer. Thus, it appears that it was intentionally worded as to in effect prohibit the hiring of day laborers, without actually prohibiting the hiring of day laborers. It is unknown whether a court would allow such a circumvention of a settled area of law.
[1] Gans, Judith. 2008. “Immigrants in Arizona Fiscal and Economic Impacts.” Published by the Udall Center for Studies in Public Policy.
[2] Combs, Susan. “Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy.” Texas Comptroller of Public Accounts. December 2006.
[3] Kristin F. Butcher & Anne Morrison Piehl. “Crime, Corrections, and California.” California Counts 9.3 (2008). Available at http://www.ppic.org/content/pubs/cacounts/CC_208KBCC.pdf.
[4] Gottfredson, Michael 2004. Crime, Immigration, and Public Policy. Published by the Merage Foundation for the American Dream. Available at http://www.meragefoundations.com/mfad_publications.html.
[5] Martinez, R. and Lee, M. 2000. On Immigration and Crime. In, The Nature of Crime: Continuity and Change. Volume 1. U.S. Dept. of Justice.
[6] Bean, Frank, Rodolfo Corona, Rodolfo Tuiran, Daren Woodrow-Lafield, and Jennifer Van Hook., 2001. “Circular, Invisible, and Ambiguous Migrants: Components of Difference in Estimates of the Number of Unuthorized Mexican Migrants in the United States.” Demography, 38:3:411-422.