To anybody interested in the Arizona immigration law, I highly recommend the Cato Institute blog entitled A Legal Analysis of the New Arizona Immigration Law | Cato @ Liberty. People, however, seem to be missing an important point that Erwin Chemerinsky raised with the New York Times:
“The law is clearly pre-empted by federal law under Supreme Court precedents,” said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.”
Preemption is not unconstitutionality. It merely means that there is a Federal Law on the books and generally the Federal Law trumps the State Law. Now, far be it from me to say that the guy who taught me civil procedure, is a nationally recognized expert in constitutional law and is the dean of the University of California at Irvine Law School, might be wrong. Let’s just say he overstates the case. Parts of the law are clearly subject to pre-emption and frankly are just silly. The trespassing part of the law is just silly. It just creates a new State Law violation out of a federal law violation. But parts of the law are neither silly, preempted, ill-advised or unconstitutional.
That includes the most controversial portion of the Law:
For any lawful contact made by a law enforcement official or agency…of this state where reasonable suspicion exists the 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).”
This merely establishes a procedure for police to follow, similar to many procedures already followed and perfectly allowable under State and Federal law. Basically it says that if you make a traffic stop and have reasonable suspicion that the people in the vehicle have committed a federal crime (in this case violation of the immigration laws) you can arrest them and turn them over to the feds. Just as you can with a drug dealer, a kidnapper, or any other type of criminal.
Whether or not one believes the immigration laws in this country make sense (they clearly do not), Arizona has simply made it part of the law that you can arrest people, who you have otherwise lawfully stopped, for suspicion of illegal immigration. The mere fact that a facially constitutional law might be enforced in an unconstitutional or discriminatory manner does not make that law unconstitutional. Most of our criminal laws suffer the same defect, such is the power of the police and prosecutors. Many a police department and many an officer have be brought to task for unconstitutional enforcement. They were doing bad things, but the laws they used to do them were not bad laws.
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