Maybe upon reading my post Arizona Immigration Law will be ruled unconstitutional Arizona’s legal and legislative teams decided to reconsider, rather revise SB 1070 in an effort to strengthen its constitutionality. Wishful thinking! Nevertheless the effort to clean up SB 1070 falls short of constitutionality leaving an opening for the Justice Department to deliver a case-ending one-two punch in court.
The Justice Department’s suit, which was filed in Phoenix last Tuesday, challenges the Arizona law on the grounds it “crossed a constitutional line” which gives the federal government “preeminent authority to regulate immigration matters.”
Arizona legislators fail to recognize that even with the amended version of SB 1070 which curtails the jurisdictional bounds of the original bill, the amended bill still encroaches on duties only the federal government is capable of objectively executing. The federal government will make the case that Arizona lacks the resources and know-how to effectively comprehend, prioritize and administer affairs related to immigration enforcement. They will also likely emphasize the fact that the federal government is the only entity that can objectively look at all the illegal immigrants residing in the U.S, and prioritize enforcement in accordance with national security and budgetary constraints. Furthermore illegal immigration is not limited to Arizona but is a complex network that spans throughout all of the U.S.
Additionally, various circumstances and exceptions affect the status of aliens residing in the U.S., which can result in arrests of individuals who are present legally. Instances of natural disasters and political unrest are few of the circumstances that could change public policy on the immigration status of affected aliens. In the absence of the sole authority of the federal government administering immigration enforcement, it is possible that the state’s enforcement of SB 1070 could disrupt these exceptions, because of the time it takes to update the immigration verification systems. Thus a person could be illegally residing in the U.S today, but reside legally tomorrow and the verification system not reflect the status change.
Under the amended SB 1070, a person is presumed an alien if the person does not provide a valid Arizona license or nonoperating identification card, tribal enrollment card, or any valid state or federal identification. The law essentially treats all individuals without identification as an alien, because the law specifically prohibits consideration of any physical attribute when making a determination as to a person’s immigration status such as nationality, race, skin color or any other protected liberty such as religion, sex, age or disability. Thus everyone without identification will be detained or arrested in an attempt to determine the detainee’s immigration status in order to be unprejudiced – so granddad with the WWII Vet cap or the holocaust survivor with the concentration camp tattoo would be detained according to the law if they fail to present or forgot to carry a valid identification card.
Regardless of these seemingly ridiculous circumstances Arizona must be fair and balanced in the administration of SB 1070 or it will leave SB 1070 open to lawsuits. Arizona cannot treat persons residing in its state differently under the law: granddaddy, foreign national, alleged Mexican drug runner, Native American or the young man with thick southern draw will all have to be subjected to the same treatment in the administration of SB 1070.
What complicates the situation further is that the legislation provides no provision that restricts the time in which a law enforcement agency or official has to make a determination on a person’s immigration status. What happens to the person detained or arrested during the verification process is vague. The law seems to grant law enforcement the authority to transport and detain such individuals suspected or deemed an alien during the verification process. This, in practice, can result in both American citizens and legal residents, being arrested or detained for indefinite periods of time while awaiting verification.
What may put the Arizona law down for the count is Arizona’s insistence the laws is not in any way, shape, or form discriminatory. If Arizona sticks to this argument then they are essentially creating a law that is unenforceable and of non-effect as to its legislative intent; because there is no physical attribute that can affirm immigration status, save a confession. When considering a person’s legal status the state lacks critical information only available to the federal government. Enforcement will create an environment in which citizens of this country may be subjected to detention for lack of identification.
Implementing SB 1070 will only result in a massive shift of immigration priorities. Resources will be diverted to Arizona’s immigration verification processes and inquiries. The cost related to transporting, detaining, housing, and adjudicating suspected aliens will rise astronomically. Because of the nature of the law, enforcement resources will be diverted to immigration enforcement and the longstanding mission and purpose of local law enforcement will change. Relationships between law enforcement and minority communities would be negatively impacted by SB 1070. Those communities would avoid contact with police, perpetuating the divide between law enforcement and the communities they serve.
These are some of the concerns Arizona will have to address in court. The federal government will likely be able to clearly demonstrate how SB 1070’s implementation would disrupt the American way of life and infringe on the constitutional liberties guaranteed to persons residing in the United States. The federal government only need to point to a recent DOJ study that show minorities are disproportionally and negatively impacted by laws meant to be enforced uniformly; yet as it pertains to representation, imprisonment and civil violations, minorities are disproportionally harmed. The Justice Department would also highlight the lack of resources, training, and national security information available to Arizona and close with the affirmation that SB 1070 violates the 10th Amendment. Thus, the federal government would most likely make the case and SB 1070 will be ruled unconstitutional.
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