Sunday, April 20, 2014
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Papers, please

Two reasons why the new Arizona immigration law is unconstitutional

Papers, please

 

 

Arizona's new immigration law has prompted me to revise the lyrics of a popular '70s Eagles song, "Takin' It Easy," so that it can be sung by an Hispanic:

Well I'm standin' on a corner in Winslow, Arizona
Such a fine sight to see -
It's a cop, my Lord, in a Crown Vic Ford,
Slowin' down to take a look at me...

Arizona has long been a noteworthy state - with its Grand Canyon, its dry heat, and its grudging decision to celebrate Martin Luther King's birthday only because doing otherwise would've meant losing the Super Bowl - but its new law truly breaks new ground. What other state can boast of a statute that essentially requires cops to approach any allegedly suspicious brown-skinned person and say, "your papers, please," just like the totalitarian officials always do in those '40s spy flicks that run regularly on Turner Classic Movies?

I won't bother to dwell on the moral dimensions of this law. It's enough to detail how it fails the most basic constitutional tests. The law's fans may not be aware of these fundamental failings - John McCain, in his latest fit of right-wing pandering, said this past weekend that "I haven't had a chance to look at all the aspects," so therefore he doesn't know "whether all of it is legal or not" - but a reckoning is highly likely. Once this law lands in a federal court (a near certainty), its key provision seems doomed, and the red-blooded Arizona Republicans who enacted it will get a useful education about the U.S. Constitution that they supposedly revere.

One basic flaw in the law is the language that gives cops the power to stop whoever they want, based on the "reasonable suspicion" that the person might be an illegal immigrant. The term is not defined with any specificity or criteria; apparently, the individual cop can decide. Brian Bilbray, a Republican congressman from San Diego, and a supporter of the Arizona law, has suggested his own definition of reasonable suspicion - "They will look at the kind of dress you wear. There's different kind of attire" - but that advice only prompts me to suggest that Bilbray should stick to his primary hobby, which is surfing.

The courts, citing what is known as the "void for vagueness" doctrine, have frequently thrown out criminal statutes that lack specificity. For instance, a law that empowers cops must typically spell out in detail what cops are allowed to do, and why, and what they are barred from doing, and why. Arizona's vague "reasonable suspicion" language is a can of worms that potentially targets the legal Hispanics who comprise 30 percent of the state's citizenry, for the apparent crime of walking while brown. Woe to the ill-clad legal immigrant who ducks out to the local market for milk without first pocketing his or her papers - as opposed to, say, the ill-clad white guy who does the same thing.

It's virtually inevitable that somebody will argue in court, persuasively, that "reasonable suspicion" violates the 14th Amendment to the Constitution - specifically, the Equal Protection Clause, which stipulates that "no state shall...deny to any person within its jurisdiction the equal protection of the laws."

Another basic flaw is even more fundamental. The federal courts have long ruled that states and localities can't enact their own foreign policy laws; treaties and immigration policy are federal business - backed up by the Constitution's Supremacy Clause, which gives federal lawmakers the authority to set a "uniform Rule of Naturalization" and to regulate commerce with other nations.

The judicial precedents are numerous: After California passed a mid-'90s referendum denying social services to undocumented immigrants, a federal court threw it out; after Texas passed a '75 law denying public education to undocumented immigrants, the U.S. Supreme Court threw it out. After the city of Hazelton, Pennsylvania passed a law barring landlords from renting to undocumented immigrants, a federal court threw it out.

I'd guess that many Arizona Republicans are well aware of the law's dubious constitutionality - starting with the governor who signed it. But they're politicians, not legal scholars, and their immediate need is to throw red meat to the angry right. McCain, the one-time defender of illegal immigrants, is trying to survive his August primary, at great cost to his soul. And Gov. Jan Brewer is also trying to survive her own August primary; signing the walking-while-brown law was a way to woo the conservatives who are steamed about her earlier bid to hike the sales tax by one percent (gasp!) as a temporary way to minimize cuts in state services.

So it's no mystery how this Arizona story might play out. If the courts shelve the law, the politicians who enacted it can always say, in effect, "Well, we did our bit. Whatever the courts do with it, it's out of our hands." Politics can be a highly cynical game - but, until such time when the courts weigh in, the brown denizens of Arizona would be well advised not to look reasonably suspicious. Whatever that is.
 

 

Dick Polman Inquirer National Political Columnist
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Dick Polman Inquirer National Political Columnist
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