Tuesday, April 24, 2012

Examining Arizona's Immigration Law As It Heads to Supreme Court

This must be the year for major Supreme Court cases. Tomorrow, the Supreme Court will be hearing open arguments for Arizona v. United States on the constitutionality of Arizona's immigration law, better known as Arizona's SB 1070. Governor Brewer's administration will be arguing that the measure is essential to fight illegal immigration, which disproportionately affects Arizona. Brewer is not arguing that the federal government doesn't have any jurisdiction, but rather that the state wants to assist the federal government in upholding federal immigration laws. The Obama administration is arguing that the federal government is the only entity that can enforce immigration laws, and that Arizona cannot "take the law into its own hands." The case will certainly set interesting precedent for what federalism looks like in modern-day America. In addition to the federalism argument, which is the facet in question, I want to take a look at a few aspects of the law that make me wonder not only the law's constitutionality, but also its effectiveness.

Federalism: The argument that the Obama administration is going to make is that the Constitution grants sole jurisdiction to the federal government. This, however, comes up against two main obstacles. The first is that the Supreme Court already ruled in Hampton v. Mow Sun Wong that regulating immigration is relegated to Congress per the Nationalization Clause in Article I, Section 8 of the Constitution. This point brings me to my second issue, which is Congress already passed a law in the United States Code, Title 8, Section 1357(g), as well as Section 1373(c), that the states can enter into agreements with the federal government to enforce immigration laws. The Brewer administration will essentially have to prove that they were not "going rogue" and instead prove that they were at least making attempts to work together with the federal government on immigration that would satisfy federal law.

Racial profiling: This is an issue brought up by those on the Left that actually merits reflection. They are up in arms that checking a suspected illegal immigrant for their proof of residency, per Section 2(B) of SB 1070, will lead to racial profiling. The Right will assert that there is nothing to worry about because the law explicitly states in Section 6(B) that one cannot discriminate based on ethnicity or national origin. The question is how the police officer would suspect someone of being undocumented. Since those who are undocumented are coming from "south of the border" and are Hispanic, the only distinguishing commonality of suspects is that they would be Hispanic. So unless I'm missing something key here, anyone who is Hispanic can potentially be harassed under this law, which is a violation of Equal Protection Clause of the Fourteenth Amendment. Although the de jure "color-blind" provision is in the law, there is no way that will take place in practice. Therefore, in this instance, I have to give kudos to the Left for the better argument.

Crime rates: The primary reason for enacting the bill was to lower the crime rates that were brought on by illegal immigration, and more specifically, the drug war in Mexico. The best way to determine the validity of this claim is to see Arizona's crime statistics. The U.S. Department of Justice provides a database that that dates from 1960-2010. Not only do they provide the number of crimes, but they provide the crime rate per 100,000 population, the latter of which accounts for population growth and proportionality. Upon looking at the statistics, they show that crime rates overall had been dropping in the latter half of the 2000s, long before any SB 1070 was passed. The overall property crime rate for Arizona hasn't been this low since the 1960s. Even with murder, rape, and theft, the rates have not been this low for a few decades. If SB 1070 was created to lower crime, that surely was a lousy reason to draft SB 1070. And if you were worried about a rise in illegal immigration, which SB 1070 doesn't even prevent, then you'll be equally disappointed by the recent study by Pew Hispanic Center that shows that net migration has not been positive since 2007.

Warrantless searches: Section 2 calls for warrantless searches if someone is suspected of a crime that could merit deportation. Especially since the bill puts an disparate impact on the Hispanic community, I hope it is self-explanatory how such a provision blatantly violates the Fourth Amendment rights of Arizonian citizens.

Economy: In addition to civil rights infringements, the bill also has brought about unintended economic consequences. I know everyone likes to talk about the "stopping suspected undocumented workers for identification" part, but then realize that the latter part of the bill has to do with labor regulation, mainly through the E-Verify program in Section 8(B) of the bill. The program is a database that requires employers to do background checks to verify the documentation of current employees. This provision not only translates into more red tape, regulatory costs and bureaucracy, but it either drives labor underground or out of the state of Arizona. The law requires employers to ask the government the permission to hire an employee. Considering that even if they did hire an undocumented worker, the act itself has no spillover effects. Whether or not the government likes it, the labor market has a high demand for such workers. More on the economic effects at this Cato Institute Daily Podcast.

Postscript: If proponents of SB 1070 think this bill has an effect on net migration via "attrition through enforcement," they must be dreaming. The recession and the Mexican Drug War are much bigger factors, which means its effect on illegal immigration is minimal at best. The claim for lowering crime rates because "undocumented Hispanics are causing crimes" is folly. This bill does nothing to address immigration reform, which is sorely needed. All the bill does is open the door for civil rights abuses and damper Arizona's economy. I'm hoping that the Supreme Court does the right thing and vote that SB 1070 is unconstitutional.

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