The New Arizona Law Prompts Big Picture Discussion on U.S. Immigration
Published: April 24, 2010

The question has been lingering for years:  what is our nation going to do about the 15 million or so undocumented living in the U.S.? Commence removal proceedings against them? Grant legal status to most or all of them who are otherwise law abiding? Do nothing and essentially allow for a continued, de facto amnesty?    

In part to address the question of undocumented in their state, and in part to cry out for help regarding the security of their state and border with Mexico, the State of Arizona has taken the extraordinary and unconstitutional step of criminalizing violations of U.S. immigration law.  That means state law enforcement agencies in Arizona now have the authority to arrest and criminally prosecute immigration law violators present in their state, with violators turned over to federal authorities for the initiation of removal proceedings after being served a state sentence. Violators of this law however, only become subject to arrest and prosecution if the law enforcement officer has a “reasonable suspicion” that the suspect is living in the U.S. in violation of immigration law.     

Amidst huge political pressure, Arizona Governor Jan Brewer last week signed this state legislative proposal into law, although it is not set to take effect for several months. Regardless of the state’s plan though, the actual implementation of the law is unlikely to ever happen. Numerous groups, including the Obama administration, have signaled their intention to challenge the constitutionality of the legislation, and the legal battle may very well work its way up to the U.S. Supreme Court. In the meantime, an important national conversation will be taking place. 

Make no mistake; the numerous legal defects in this law are clear as day.  Most notably, the law flies in the face of the explicit constitutional prohibition against states acting in realms where the federal government has sole jurisdiction, such as immigration policy and border control. Just as flagrant is the law’s convenient disregard of individual (undocumented or otherwise) civil liberties such as constitutional rights to Due Process of Law and against Unreasonable Searches/Seizures, with Arizona law enforcement given carte blanche to essentially engage in racial profiling and arrest anyone who looks, sounds or smells undocumented, or is otherwise “reasonably suspected” to be in the U.S. without legal status. The constitutional issues are numerous, as are the logistical challenges, including the ugly reality of  violent criminals being given the upper hand against their undocumented victims or witnesses, with law enforcement now assigned the conflicting responsibilities of not only arresting the violent offender, but also their undocumented victim or witness.

For sure, this new Arizona legislation has gotten people talking, both in support and opposition, and ranging from civil rights leaders, politicians of all persuasions, and of course, to the media pundits. What is clear though is that the people of Arizona, through their state legislators, have spoken and most people in Arizona are not happy with the status quo when it comes to federal enforcement of our border with Mexico and our immigration laws in general. Although the people of Arizona have a right to have their health, safety, and property protected, the goal must be achieved within parameters allowed by our constitution, and thus they will not have the final say on the implementation of the new measure. Again, the new Arizona law has restarted an important conversation, but whether it will be an honest one or one involving politician/pundit posing opportunities remains to be seen. Unfortunately, from the looks of it, posing appears to be the dominant theme, as we seem to be becoming a society too quick to accept fear mongering and sensational presentations as foundations of our world views.

The importance of Arizonians’ concerns with regard to crime, border enforcement, and the use of its financial and natural resources should not be minimized. However, the answer lies not in draconian, desperate state action, but solutions that will come from our U.S. Congress and President.  Hopefully, strong Congressional and Presidential leadership will prevail, with the American public being reminded that it was former President George W. Bush, along with John McCain and legions of other Republicans who most recently championed legislation to strengthen U.S. borders AND enact comprehensive immigration reform – with a path to U.S. citizenship for most of our country’s undocumented population. Unfortunately, now that it is President Obama, and legions of Democrats who are championing this dual initiative, there are conveniently only a handful of Republicans supporting the cause, with most Republicans speaking to American voters’ fears, anger, and resentment.

In assessing the options outlined above with common sense and clear headed thinking,  one can be sure the option of initiating removal proceedings against so many millions of people is in no way financially, logistically, or even emotionally realistic.  Rather, the option advocated by President Obama, and previously advocated by President George W. Bush and presidential contender John McCain, featuring enhanced border enforcement and legalization of the undocumented is the sensible approach and one superior to mass deportations or the status quo.  But for this realistic, common sense answer to have a chance, we will need two important ingredients: 1) honest and gutsy presentations by politicians and 2) a clear thinking, and practical, public. That seems like a long shot these days.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois