The United States filed suit July 6 to stop Arizona’s anti-immigrant enforcement law. (Click here for full text of lawsuit in pdf.) Since the law was signed in April, legal scholars have argued over whether it is constitutional, activists have denounced it as promoting racial profiling, and many police chiefs said it is counter-productive and a waste of scarce time and resources. An Arizona police officer and the National Coalition of Latino Clergy and Christian Leaders filed separate legal challenges to the law on April 29, and other groups have also challenged the law. Now the feds are weighing in.
Supporters of SB1070 say it is a necessary policing measure, but many police oppose the bill. The cities of Minneapolis and St. Paul have taken a diametrically different approach to policing and immigration.
Police and SB1070
The International Association of Chiefs of Police, in its 2007 Police Chiefs Guide to Immigration, pointed out legal uncertainty about whether local police have any authority to enforce immigration law, particularly since many immigration violations – such as being illegally present in the United States – are civil, not criminal violations.
| What is Arizona SB1070?
Arizona SB 1070, which was signed into law April 23 by Governor Jan Brewer: 1. makes it a state crime to be in the country illegally or to fail to carry an alien registration document; 2. requires Arizona police to question anyone if they have a “reasonable suspicion” that the person is in the country without authorization; 3. allows anyone to sue any Arizona government employee for action limiting or restricting federal immigration enforcement; 4. makes it illegal to hire day laborers on the street; 5. makes it a crime to “transport, move, conceal, harbor or shield” a unauthorized immigrant. |
The Arizona Republic described the divide in public opinion on policing under the new law:
Supporters say it would give officers more freedom to do their jobs and would require little additional training. They say the bill has just enough teeth to keep departments from continuing to ignore immigration laws; on the flip side, it expressly forbids officers from racial profiling.
Opponents say it would require departments to make immigration enforcement a priority over violent crimes, drain already strained financial and manpower resources, force officers to target individuals based on their accent or dress, and result in costly lawsuits against municipalities for participating in racial profiling as well as failing to adequately enforce the law.
The Arizona Association of Chiefs of Police opposed the new law. Police chiefs across the country have consistently backed away from immigration enforcement, both because it creates more work without more resources, and because, by creating fear in victims and witnesses, it impedes community policing.
| Conflicting stories on ICE enforcement
The feds charge that SB1070
Strange, then, that in the Midwest, those same federal agencies are focusing more and more on deporting clearly and admittedly non-dangerous aliens. MPR reports that deportations in the five-state region are running one-third higher than last year, and details the Immigration and Customs Enforcement (ICE) practice of visiting Hennepin and Ramsey county jails to look for anyone who might be deportable, whether or not they have been convicted of, or even charged with, a crime. About half of the people deported after jail interviews have not been convicted of crimes, according to MPR. Sheriffs’ estimates of how many undocumented immigrants are in the jails vary widely – in Hennepin County, Sheriff Rich Stanek estimates that they “account for nearly 2 percent of the 37,000 to 40,000 people booked into the jail each year,” while in Austin, Mower County Sheriff Terese Amazi implausibly claims that, “About half our jail population is illegal.” Enforcement efforts target people who are in jail, even if they are in jail because of a traffic stop and lack of ID. ICE agents are welcome in jails, despite immigration separation ordinances in Minneapolis and St. Paul that mean beat cops don’t ask about immigration status.
One possible reason for the changes, according to MPR:
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A different approach: Immigration separation ordinances in Minneapolis and St. Paul
In 2003, Minneapolis adopted an “immigration separation” ordinance. Chapter 19 of the municipal code provides that city employees “shall only solicit immigration information or inquire about information status when specifically required to do so by law or program guidelines as a condition of eligibility for the service sought.” Public safety officers are similarly limited to “Investigate and inquire about immigration status when relevant to the potential or actual prosecution of the case or when immigration status is an element of the crime.”
Minneapolis Mayor R.T. Rybak explained in 2007:
The role of the police officer is to protect and to serve every person who is in Minneapolis. We know that if there is a fear that reporting something to the police could jeopardize someone’s immigration status, including those that have legal status, then people will not come forward with the information that we need to know. We need people to report domestic abuse, we need them to report gang activity. We have seen many cases where people are afraid to come forward for fear that it will jeopardize their immigration status, even if they are legal immigrants.
New York and some other cities have similar policies:
New York then evolved toward a “don’t ask, don’t tell” policy, in which city officials are no longer forbidden from sharing information with Washington but are barred from inquiring about the immigration status of people using city services, except when it’s relevant to assess eligibility.
San Francisco declared itself a sanctuary city in 1989. That’s a term with no legal meaning, but one often used to denounce any limited enforcement policies.
Constitutional Issues
Latino groups, civil libertarians and some constitutional scholars all warned that the law would promote racial profiling by police, in violation of the Equal Protection clause of the 14th Amendment. The law says police need only “reasonable suspicion” to stop someone. Some of its advocates say it specifically prohibits racial profiling. That’s not quite true. The law says that stops cannot be based “solely” on race, but race can still be part of the equation. As State Representative Alfredo Gutierrez told Chris Matthews on Hardball, “If you and I are walking down the street, you’re not going to be the subject of reasonable suspicion.” Politifact concludes that the issue of profiling “can be described either as nuanced or murky.”
There’s at least one more constitutional issue: the National Immigration Law Center and several other groups said April 29 that they would file a legal challenge to the law on constitutional grounds, because it “violates the supremacy clause by interfering with federal immigration power and authority.”
The federal case
The Department of Justice press release summarized the grounds for suing to block enforcement of Arizona SB1070 and to declare the law unconstitutional:
In a brief filed in the District of Arizona, the Department said S.B. 1070 unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy, explaining that “the Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.” A patchwork of state and local policies would seriously disrupt federal immigration enforcement. Having enacted its own immigration policy that conflicts with federal immigration law, Arizona “crossed a constitutional line.”
The Department’s brief said that S.B. 1070 will place significant burdens on federal agencies, diverting their resources away from high-priority targets, such as aliens implicated in terrorism, drug smuggling, and gang activity, and those with criminal records. The law’s mandates on Arizona law enforcement will also result in the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.
Arizona Republican Senators John McCain and Jon Kyl voiced opposition to the federal lawsuit:
It is far too premature for the Obama Administration to challenge the legality of this new law since it has not yet been enforced. Most legal experts believe such a “facial challenge” to the statute would be very difficult to win.
Moreover, the American people must wonder whether the Obama Administration is really committed to securing the border when it sues a state that is simply trying to protect its people by enforcing immigration law.
Congressional representative Luis Gutierrez (D-IL), a sponsor of comprehensive immigration reform legislation, said the federal lawsuit is a step in the right direction:
The Arizona law is a law-enforcement nightmare that potentially turns witnesses and crime victims into suspects and will make legitimate law-enforcement work much more difficult. The federal government has a responsibility to step in when states get U.S. law so fundamentally wrong.
But, the problem of illegal immigration is bigger than the state of Arizona and requires a national, federal response.
Mary Turck
News Day 