Legal Commentary

Arizona's new immigration law, SB1070, is complex, vague, long, larded with drafting errors, and designed by its creators to test the limits of a dozen or more legal principles.  Therefore, it is hardly surprising that it is difficult to parse.  It also raises strong opinions (and, possibly more importantly, strong feelings) on both sides.  Accordingly, again, unsurprisingly, the combination of passion and complexity has resulted in a number of unequivocal, emphatic, and inaccurate claims about the law, including by the Governor and by the principal sponsor of the law, Sen. Russell Pearce, who claim that SB1070 prohibits racial profiling when it clearly authorizes it.  Whatever one's view of the merits, the debate should rest on precise and accurate understandings about the determinable features of SB1070. 

I recently criticized mistakes in an op-ed by an apparent supporter of SB1070.  The fairness doctrine is still in force in my universe, so I will apply the same scrutiny to a critic of the law, a group of which I am a member and a friend, the Law and Society Association.  At their recent meeting, the LSA Board of Trustees vowed to boycott Arizona.  Their resolution misdescribes the law in several ways, described after the break.

Among their reasons for the boycott was the following: "This legislation creates a constitutionally questionable crime of trespass for being in the state without appropriate documents."  This is an error.  An earlier version of Section 3 of the bill, adding Arizona Revised Statutes section 13-1509, used the "trespass" concept, but the version that became law did not, instead borrowing document and registration requirements from federal law.  Of course, with a recently passed bill that was almost immediately amended, confusion is understandable; Linda Greenhouse acknowledged making the same error in a column in The New York Times.  But this change may be legally significant:  Policy entrepreneur Kris Kobach, the putative author of the bill, claims that states can't make up their own immigration laws, but can enforce existing federal ones, including through state statutes.  (see page 475 et seq. of this article)

The resolution also states: "The new law makes police vulnerable to litigation from anyone, resident in Arizona or not, for failing to take active steps to determine immigration status."  But Section 2 of the bill, adding A.R.S. 11-1051(H), provides that "a person who is a legal resident of this state may bring an action in superior court " to enforce the provisions of the law--not anyone.  The resolution is simply wrong in suggesting that non-Arizonans can sue.

Finally, the resolution states: "Citizens and legal residents who appear Hispanic/Latino will inevitably become the targets of increased scrutiny, intrusive questioning, possible harassment, and perhaps detention. Those who cannot prove their right to remain will be subject, not only to deportation, but to a jail term."  The first sentence is true, but, for better or (in my opinion) for worse, the Supreme Court has already authorized racial profiling in immigration enforcement, and held that race-based stops do not violate the Fourth Amendment.  The LSA understandably does not want to hold conferences in a discriminatory jurisdiction, but if that principle governs, it can't meet anywhere in the land of the free and the home of the brave. Arizona incarcerates African Americans and Hispanics at a higher rate than whites, but Arizona's disproportionality is the same as the national average according to The Sentencing Project.  Illinois, where the LSA annual meeting just took place, has greater disproportion for both African Americans and Hispanics.

The second sentence ("Those who cannot prove . . .") is not justified by anything in the text of SB1070.  To be sure, in the southwest, there is an ugly history of illegal deportation of U.S. citizens. But even this singularly aggressive and extreme statute does not purport to provide for deportation by state courts or officials.  Deportation remains a federal power, with an exclusively federal adjudication apparatus, and SB1070 makes it no more or less likely that the federal authorities will illegally deport citizens or lawful residents.  And nothing in this law alters the principle applicable in Arizona and elsewhere that in criminal cases guilt must be proved beyond a reasonable doubt before conviction and sentence.  Assuming arguendo that some parts of the Arizona statute are valid, there will still have to be proof beyond a reasonable doubt that a defendant is undocumented etc.

None of this is to say the boycott is unjustified (although for the record, while I respect others' views, it is unlikely to be effective and will hurt low-wage workers).  However, the law should stand or fall in the court of public opinion based on its actual characteristics.  The law will stand or fall in the U.S. District Court for the District of Arizona based on the brief in support of the motion for a preliminary injunction against SB1070, available here.