Friday, June 25, 2010

A Recent Interview...

Below is a portion of an interview concening the legality of SB 1070 with EL Proceso, Mexico's leading politcal Magazine:

1. Is this law unconstitutional? Why?

The constitutional challenge to Arizona's SB 1070 will likely be that it is preempted by existing federal immigration law, and therefore violates the Supremacy Clause of Article VI of the United States Constitution. While this question will likely be litigated for some considerable time, I believe the law is preempted by United States federal law.

The SB 1070's stated purpose is to assist in enforcement of federal laws against illegal immigration. The law apparently seeks to prevent successful preemption attacks by tracking federal definitions and placing state law enforcement officials in the service of enforcing federal law. However, most legal experts on immigration already believe and the federal government will likely take the position that Arizona's new law conflicts with and goes far beyond federal enforcement policy. The fact that Arizona tracks federal definitions makes it more likely that the law will be seen as unconstitutional for at least two reasons. As noted legal expert Professor Jack Balkin recently observed: "Arizona will not be able to justify the law on the grounds that it has only incidental effects on federal immigration policy;" and , "it will be more difficult for Arizona to argue that the scope of its new law is not already occupied by the federal scheme and that the law does not interfere with federal law's balancing of the relative costs and benefits of adopting particular enforcement policies."

Another related reason that the Arizona law will likely be struck down is that, while purporting to be helpful, it actually interferes with the federal government by engaging in over-zealous draconian measures. While purporting to be of assistance to federal immigration authorities, what appears to be at play is a political statement by the leaders of Arizona that evidently assert that " since the federal government is apparently not doing enough to address immigration, the state of Arizona will protect its own borders, irrespective of what the federal government thinks. If the above is in fact so and the law is seen to go beyond federal law, the more likely it will be seen to be in violation of federal law and unconstitutional under the Supremacy Clause of the United States Constitution. In other words, Arizona will more likely than not be seen as interfering with the supreme law of the land--Federal Immigration Law.

Thus the key question is whether SB 1070 does in fact go beyond federal law and thus interferes with federal law or does it simply replicate and enforce federal immigration law?

As a recent study by Arizona law professors Gabriel J. Chin, Carissa Byrne Hessick, Toni Massaro, and Marc L. Miller noted, SB 1070 does not simply mandate the enforcement of federal criminal and civil immigration laws. It creates new state crimes with different elements than similar federal crimes, it creates mandatory penalties that are different than the discretionary penalties in the federal statute, and it appears to remove the policing and prosecutorial discretion that is inherent in federal immigration enforcement. Any mandatory directive to state law enforcement to enforce federal law would transfer discretion in federal immigration enforcement from federal actors to the state. This preemption concern is heightened by the creation of distinct state crimes and penalties aimed at the same or similar underlying act as the federal immigration provisions.

Certain crimes under SB 1070 do not exist at the federal level. They include section 5A, making it illegal for a driver to stop and attempt to hire or to hire and pick up passengers, if that action impedes traffic; for a person to get into someone’s vehicle in order to be hired; or for an illegal alien to apply for work or solicit work publicly in the state. Most of this is aimed at day laborers and those who hire them. Another example: Section 2H allows any citizen to sue an official or agency in the state who "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." And section 2B of the new law requires law enforcement officers to try to check the immigration status of anyone they lawfully stop if they have "reasonable suspicion" the person might be an unauthorized immigrant. (More on this provision later).

For the fairly exhaustive reasons stated above, SB 1070 is likely to be seen as interfering with federal immigration policy and not at all assisting it, and is therefore likely to be held unconstitutional under the Constitution's Supremacy Clause.

2. What are the legal bases to challenge the SB 1070?

Please see my answer to question number one. I believe it is fairly exhaustive.

3. Is There any chance to stop this law before take effect?

The only real likelihood of this happening if a court in one of the several law suits challenging this law issues an order enjoining state officials of implementing this law. While I believe the law should and will be ultimately struck down, I believe an injunction stopping the state of Arizona is not likely to occur in the near future.

4. Do you think the White House will challenge this law?

I know from a variety of sources as well as public statements by Attorney General Holder, the federal government is researching the matter and may very well bring suit to stop Arizona's efforts. However, much like the suits that are already ongoing, this process, if commenced, will take considerable time in the court system. I wish they would contact some legal academics that have been examining this issue for some time now. We might be able to assist them in moving things along at a bit of a faster pace.

5. What are the technical aspects of the process (How long it’s going to take, etc).

Realistically, the only option, both politically and legally, are in the courts. This is a slow process--likely a year will pass, in the best case scenario, for an order enjoining Arizona. The other options would be federal legislation on the matter, but there does not seem to be the political will in the United States for such action. In fact, a contrary position is more likely to be politically acceptable--we are quick to build fences and less dedicated to protect civil and human rights of much needed undocumented workers.

The only other option would be an executive order by the President forbidding Arizona from taking this action. Such an order would be at best constitutionally problematic, though it would be the fastest solution. Thus, because an executive order will likely be successfully challenge this option is not viable.

6. If this law is unconstitutional, why are the leaders of Arizona doing this? Is just a

political statement?

As you and you readers may vey well know, the United States has had a somewhat schizophrenic relationship with immigration--when we believe they are needed, we welcome immigrants, when we believe we have reasons for concern--wars or the economy--we make them scapegoats. Thus, I believe we have a political statement is at play here. I actually believe some people misguidedly believe immigration is at the heart of America's problems. This belief however is not based on facts, as some of my own works have shown, many views of immigrants and their impact are based more on fear and ignorance rather than facts and actual economic data. It is easy to get votes and political clout when one has an easy target, and unfortunately there are very few targets more vulnerable than undocumented workers. Fortunately, we have organizations and individuals prepared to stand up and challenge these erroneous beliefs

What we need is a counter-political statement by both those in Mexico and within the United States. As the head of your state warned our Congress, Mexico is a nation-state that is economically important to the United States. Perhaps your country should use that power to have anti-immigrant officials pay--literally in their pockets-- for their positions. Here, Latinos and Latinas need to use their pocketbooks as well, but we also need to be heard in the polls. We need to respond to any anti-immigrant, anti-Latino laws with our votes! As the old Latin saying goes, we need to exclaim " Presente" and "Ya Basta" with hateful efforts.

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