Will Arizona’s Immigration Law Pass Legal Muster?

Republican Gov. Jan Brewer of Arizona talks about the sweeping new immigration bill she signed into law Friday, in Phoenix. Arizona Gov. Jan Brewer signed a controversial bill Friday that makes it a crime for illegal immigrants to be in the state. The new law will require local police to seek proof of immigration status if there is reason to suspect individuals are illegal immigrants.

Earlier Friday, President Obama had criticized the bill as “misguided.” He said that the federal government’s failure to overhaul immigration law had been an invitation for other jurisdictions to act “irresponsibly.” Now that Brewer has signed the bill into law, however, the question is whether it can survive inevitable legal challenges.

Both supporters and critics of the Arizona measure — one of hundreds of other state laws enacted in recent years that were designed to crack down on illegal immigrants — agreed that the law indeed was born out of frustration at Washington’s inability to grapple with the problem.

“We in Arizona have been more than patient waiting for Washington to act,” said Brewer, a Republican facing a tough re-election challenge. “But decades of inaction and misguided policy have created a dangerous and unacceptable situation.”

Is It Constitutional?

Soon after Brewer signed the bill into law, the Mexican American Legal Defense & Educational Defense Fund issued a press release saying it would challenge the law.

“Time and time again, courts have determined and made it very clear that the ability to regulate and enforce immigration is exclusively in the federal domain,” says Karen Tumlin, managing attorney for the National Immigration Law Center. “This law violated the federal space by very clearly trying to regulate and enforce immigration law.”

Not everyone is so sure that legal challenges will be a slam-dunk, however.

Benjamin E. Johnson, executive director of the American Immigration Council, opposes the law but says the question of whether it is “unconstitutional on its face is unclear.”

States must leave most immigration matters to Washington. They can’t decide who is allowed to enter at the border, for instance. But whether the new law oversteps state authority is “a difficult question to answer,” Johnson says.

Could Lead To Violations

An easier question, in his mind, is whether the law will lead to constitutional violations, such as unlawful searches and seizures or discrimination based on protected characteristics such as race or ethnicity.

“That seems to me the much greater risk,” Johnson says.

The law requires noncitizens in Arizona to carry their immigration paperwork with them at all times. That clearly would be an example of the state intruding into exclusively federal domains of enforcement and regulation, Tumlin argues, and will inevitably lead to racial profiling.

“How are police going to enforce this?” she asks. “They’re not going to ask whites.”

President Obama has directed the Justice Department to be mindful of civil rights violations stemming from the new law.

‘Model Legislation’

But Bob Dane, press secretary for the Federation for American Immigration Reform, which supports tighter immigration restrictions, says the new law was a “common sense” reaction to the costs associated with illegal immigration that have fallen on the border state.

“This is model legislation for most other states, and it will certainly pass the legal litmus test,” he says. “The argument has been made that immigration enforcement is the exclusive domain of the federal government and that states are unable to act. In fact, that’s been proven otherwise, and we’re seeing that federal pre-emption does not preclude meaningful participation by states and localities.”

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