Arizona Law will be ruled unconstitutional?
May 28, 2010 at 4:52 am 5 comments
Political Columnist
Wordpress
Gov. Jan Brewer’s signing of SB 1070 into law has one more obstacle to overcome before it can be permanently placed on the books. It has to pass the scrutiny of the courts. In our system of government there are three equal branches of government: Executive, Legislative, and Judicial. Although lawmaking is constrained to the legislative and executive branches of government, the courts can overturn law and rule it unconstitutional. However, it is common practice for the legislative and executive bodies to vet laws for its constitutionality before they are placed on the legislative agenda. Given that SB 1070 was appropriately vetted, one begs to question why so many conclusively label Arizona’s SB 1070 as unconstitutional. Has politics blinded the eyes of Arizona’s legal analysts or do the masses have it wrong?
According to the SB 1070 as it was passed, the provisions given under Article 8, Enforcement of Immigration Laws seems to be the subject of debate. First and foremost, it is common knowledge that immigration enforcement is the duty of the federal government; according to the 10th Amendment of the United States Constitution, federal duties granted to the federal government are exclusively reserved to the federal government, and therefore not a right granted to the States or its people. Notwithstanding the 10th Amendment and its implications, consider the following provisions under Article 8 of SB 1070:
A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.
B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
E. A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.
These provisions in SB 1070 are the sections of the law that are in question, namely sections B and E, under Article 8. What deserves attention in section B is the terminology “for any lawful contact” as it pertains to a “law enforcement official or agency of this state or a county, city, town or other political subdivision.” When taken together the language casts a rather wide net on the persons and institutions that may pull the immigration status of the individuals with whom they are in contact. For example, the Health Department is considered an agency of the state; therefore it is lawful, according to this provision, for this agency to make a reasonable attempt to determine the status of a person – even an animal control officer, formerly known as a dogcatcher, is a law enforcement officer and allotted this power under section B. Moreover one can make the argument, rather present a reasonable interpretation this provision in a court of law, that lawful contact can entail almost any contact between an agency or enforcement officer and the individuals they serve. To expand on the lawful contact language: is it lawful contact for an officer to speak to a person, or in a case where a person calls for emergency assistance, receives medical services, or reports a crime? When DUI check points are installed, would the interaction between citizens and officers be considered lawful contact? These are some of the many concerns opponents of this law are calling into question.
Added to this confusion is section E under Article 8. According to this provision, a law enforcement officer may arrest a person without warrant. (Stop and reread the last sentence one more time, without thinking it’s referring to some Cold War Soviet State) In the United States of America, all persons residing within its borders are afforded the presumption of innocence, hence the statement innocent until proven guilty; not to mention a warrant is a legal writ that is obtained from a judge who determines if there is reason to usurp the presumption of innocence, allowing certain rights to be curtailed.
Therefore, under normal circumstances, a warrant is necessary for an arrest absent an actionable crime. Thus including the language, “a law enforcement officer, without warrant” removes a liberty granted by the spirit of the Constitution and usurps due process laws of all persons in the state of Arizona. Further, when used in conjunction with the language “if an officer has probable cause to believe” that a person “has committed any offense that makes a person removable from the United States” gives officers the ability to utilize a “hunch” to make a determination on a persons immigration status, because being an illegal immigrant is about the only offense that makes a person removable from the United States.
Given the tools available to state enforcement officers, there is no legal manner in which a person’s legal status can be determined, absent a warrant, without violating a person’s civil rights. To prove the latter statement one only has to ask, how can a person’s legal status be determined just by looking at them, and would give probable cause, without warrant, to believe they have committed a removable offense? The individual’s nationality, sex, race, sexual orientation, color, age, disability, political persuasion, what?
Finally section A under Article 8, demands that all entities enforce the provisions of the law without conscience, and makes it a criminal offense not to enforce the provisions of the law as it is written. Therefore all cities, towns, agencies, officers, and political subdivisions of the state are criminally liable if they do not enforce sections B – J under Article 8.
Thus it can be said, with great confidence, this law will sooner or later be struck down in the courts. It will be struck down on the basis of federalizing the state and on the grounds that it violates liberties guaranteed by the constitution. And though laws could be written by lawmakers, our system of government is designed in such a way to protect liberty and justice; and no one body or action could change the intent and system of government of this great nation our Founding Fathers strove hard to preserve. God bless America!
Entry filed under: Politics. Tags: Arizona immigration law, Arizona Immigration law unconstitutional, keiron jackman, sb 1070.
1.
keiron Jackman | May 28, 2010 at 4:54 am
I know I said the last post was my last post but I am going to do the final draft of this post on here. I wanted some suggestions or challenges to this post.
2.
Dave Lickiss | May 28, 2010 at 6:56 am
I think you mean Article 6; 2nd Clause US Constitution, (supremacy clause). Your reading the 10 Amendment is a bit off. The 10th Amendment forbids the federal government from exceeding the powers expressed in the Constitution and reaffirms the reservation of all non-expressed powers to the states or the people.
Section E has been part of Anglo-American common law since Blackstone (pre-Revolution). See Atwater v. City of Lago Vista 532 U.S. 318 (2001) – decision by Justice Souter. (full arrests ok for even minor traffic infractions)
Seciont B’s language was modified to clarify the intent (claimed anyway) that the police must have a non-immigration enforcement reason for the initial stop.
Section A is why some AZ PD’s are challenging the law in court.
For the idea that the courts will strike this down, I doubt it. If a federal court struck this law down they would also have to strike down federal laws governing I.C.E. (formerly INS) that have fewer protections for suspected illegal immigrants. If forced to rule on the issue, the courts will try to interpret away the problems by narrowing or explaining the language.
As a law student specializing in Constitutional law, I would urge you to pick up a basic law study guide (personally I like the “Understanding (insert topic)” by Lexis-Nexis publishers).
I will admit I would have found some of your statements very persuasive if I had not read cases that the federal Supreme Court has reached different conclusions.
3.
susan | May 28, 2010 at 8:40 am
Reading the law I would say that “the masses have it wrong”, and the ‘masses’ includes your politicians.
I have not been so gobsmacked by the Americans since GW and 2000 elections.
On another topic, you. Please do not stop this blog. I have just become a follower of yours – it’s always the way – you find someone you like and they disappear.
Good luck on your next endeavour.
Sue Rattray
Murwillumbah
Australia.
4.
keiron Jackman | May 29, 2010 at 7:05 pm
thanks
5.
Dexter60, San Francisco | May 28, 2010 at 9:24 pm
Of all the elements not covered by Dave Lickiss above, I will only say this, as being at the heart of all the disputes:
“In the United States of America, all persons residing within its borders are afforded the presumption of innocence, hence the statement innocent until proven guilty; not to mention a warrant is a legal writ that is obtained from a judge who determines if there is reason to usurp the presumption of innocence, allowing certain rights to be curtailed.”
First, presumption of innocence is not law, but is one of our long-standing traditions, no more and no less — part of ‘the benefit of the doubt’ as a principle for protection of all.
A warrant or arrest comes from the evidence or perception of an act that requires investigation for the determination of guilt — we cannot substituted the nature of men for the law or interpret the law based upon agenda or begin to suggest that is the purpose of every law.
Should we alter our thinking in that manner, all trespassers w/o portfolio would be given a pass by those who cannot (or refuse) to see the damages they cause; finding out the facts or the truth is then prohibited — contrary to the letter, spirit and intent of the law.
No rights can ever trally be curtailed, everyone as the right to violate any statute, as many unfortunately now do. But the law is not meant to protect the criminals as it now being used either.
People have to come to terms with that in their own lives, cities ans states. Especially today when the Federal Government itself believes it is above the States, the People and the Law.
Thank you for the thoughts, one and all.