Immigration Law Legal Issues

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ASU law professor Paul Bender will discuss the legal issues that are expected with Arizona’s tough new immigration law.

Ted Simons: Two lawsuits were announced today, challenging Arizona's new immigration law. The national coalition of Latino clergy and Christian leaders filed suit based on grounds that the law usurps federal authority on immigration enforcement and that it may lead to racial profiling. Also today, a Tuscon police officer filed suit saying there is no race neutral criteria or basis to suspect or identify someone who is unlawfully in the United States. In addition, the Mexican-American legal defense and education fund, the ACLU of Arizona, and the national immigration law center announced plans to file suit in the future. Here now to talk about the legal issues regarding Arizona's new immigration law is Arizona state University professor -- law professor, Paul Bender. Nice to see you. I've got some questions for you. Let's start with the general overlook, what do you think of this law?

Paul Bender: What do I think of it, or its constitutionality.

Ted Simons: What you think of it.

Paul Bender: I don't like it.

Ted Simons: What about the constitutionality?

Paul Bender: I think it is probably unconstitutional, some of it, as -- because it's preempted by federal immigration law. The principle section of the bill would make it a crime, does make it a crime, when the bill goes into effect it would make it a crime, a state crime basically to be in this country without your Doc documents with you. If you have the documents, you don't have them with you, it's a crime. If you should have had the document and you don't have them at all, it's a crime. It's already a federal crime. So it adds a state crime. That is the state enforcing federal immigration law. On its own, without any federal control. And I don't think states are allowed to do that. Immigration is a topic that is exclusively for the federal government. Think about it. Suppose the federal government didn't have any immigration laws. Could a state say, nobody from Guatemala can come into the state? Nobody from Canada can come into the state? Of course not. Federal government passes the law, it's up to them to enforce it. They're the ones who get to decide who to deport, who to detain, what standards to use. And it's not appropriate, I don't think, for -- to have 50 different states with 50 different enforcement policies of federal immigration. Just think of the foreign policy problems that can arise. The federal government is trying to have a good relationship with a country, and a sheriff in Minnesota or something like that arrests a diplomat from that country because he does haven't his documents with him. That's the kind of thing that to me means federal immigration law needs to be federal law.

Ted Simons: So when supporters say it just mirrors the federal law, federal law has now become state law, the feds won't enforce, we will, how do you respond?

Paul Bender: Just mirroring the federal law doesn't make it right. Suppose a state said it was a state crime to file your federal income tax return late. Do you think that would be constitutional? So we'd have the states going around seeing whether you filed your federal return, even though the feds might want to give you an extension, the states could say, sorry, you're not going to do that. We're fighting in Afghanistan, OK? Could a state say, we'll send our troops under our commanders, because you're not doing a good enough job. The answer is no.

Ted Simons: Basically mirroring so that we can enforce better than the feds --

Paul Bender: it's up to the feds to decide how to enforce, when to enforce. That's what the whole homeland security department is about. Now, people in Arizona think the feds aren't doing good enough jobs. Complain to them, try to get the federal law changed. But this is a federal law. And the federal government has the right to decide how it's going to enforce it. The federal government wants the state's help, it can ask for the state's help. And they have done that sometimes. But this bill goes way beyond that. It makes it a freestanding state crime, and so you are authorizing state police to detain somebody, arrest people, put them in jail, even, who the federal government doesn't want to do that to. Under federal law.

Ted Simons: So that you think, the bill is most questionable on those grounds?

Paul Bender: Yeah.

Ted Simons: What about racial profiling?

Paul Bender: Well, the bill certainly, if this system goes into effect, it is libel to be done in an unconstitutional way, in a discriminatory enforcement, like racial profiling. I don't think you can tell from the bill as it stand that that is definitely certainly going to happen. I think the chance it would happen, and past history indicates that might happen. But I would think you would have to wait until the bill goes into effect, and see how it's actually enforced before you could make a really strong racial profiling claim. The preemption claim I was talking about before, I think you can bring before the bill goes into effect.

Ted Simons: And --

Paul Bender: Who the plaintiffs will be or can be is a somewhat complicated question, but I'm sure there are people who withstand the challenge.

Ted Simons: A couple sections of the law got the attention of lawmakers this evening. A law enforcement official or agency may not as it's written, solely consider race, color, or national origin in implementing the requirements of the subsection extent to the extent of the constitution. They took out, or they're thinking of take can out the word "solely." Does that make a difference?

Paul Bender: Yeah, I think that helps. Definitely. Because it would then say they may not consider race, period. At all. In doing. And that's the right answer. They should not consider race. But the fact that a law says that the police can't consider race doesn't guarantee that they're not going to consider race. And that's why I feel that they may be bad racial profiling here, but you need to wait and see how the thing is enforced. And then if it is enforced, I would it this would be a plausible lawsuit. But that's a good step in the bill to take out the "solely."

Ted Simons: But again, it says, and --

Paul Bender: that would be an improvement.

Ted Simons: Makeup not consider race, color, or national origin in implementing. Then what do you consider?

Paul Bender: Well, that's the problem. The first question is, what do you mean, when you say what do you consider? What do you consider when? The bill says that when there's a lawful contact between the police and somebody, then they can if they have a reasonable suspicion, that they're in the country illegally, they can ask for some identification documents. I think what's going on now in the legislature today is that's a very vague phrase. What's a lawful contact? They want to change that, and I'm told they probably will change that to say what a local contact is, you suspect somebody is committing some other crime, not just being in the country illegally. And it's only then that you can ask for identification.

Ted Simons: I think they're looking at stop detention or arrest.

Paul Bender: OK. So let's suppose you stop a car and you see people inside. The bill then says that's a lawful stop. The bill then would say, well, if the police has reasonable suspicion that somebody riding in the car is here illegally, they may ask for identification, if the person has a driver's license the policeman should let them go. If they don't, then what? Does the officer then have probable cause to think that that person is in the country illegally, just because they don't have a driver's license? And the police officer may think they look like the kinds of people who are illegal immigrants? I would think not.

Ted Simons: Then what constitutes reasonable suspicion?

Paul Bender: Reasonable suspicion does not equate justification for arrest. The fact there's reasonable suspicion, the bill says authorizes you to ask for identification. Suppose there's no identification? Then does that give you probable cause to arrest the person? That's what is left unclear in this bill. And I'd like to know how it's going to be enforced to see whether that's unconstitutional. But the problem is that you've set police free to use as you say, how are you going to tell whether somebody is here illegally or not? It's very subjective, it's very impressionistic. There's no way to confine that in any sense of a way. And if you're going to interpret it to say, as the scenario we were just talking about, if somebody who is suspected of being here illegally doesn't have a driver's license, if the police have the power to arrest them and detain them, while they check on their immigration status, that's a very scary thing for people. Not everybody has his driver's license with him all the time, and people might be afraid to go out in public and things like that. Because even though the bill says you're not supposed to use race or ethnicity in deciding whether you have a reasonable suspicion, as you know and as we're talking, you have to. Even if you say you're not going to do it, you're not going to ask everybody you stop to show their identification. And even then if you ask them for identification, and they don't have it, so what? If you don't have a driver's license with you, that doesn't mean you're illegally in the country. So there's so much subjectivity, there's so much that's vague, that's left to the police discretion, that it's very pregnant with the possibility of using race, even though it says you may not. Because you kind of almost are forced to.

Ted Simons: And the part of the bill where it says, reasonable attempt when practical, to determine the immigration status of the person. Again, you see that as vague.

Paul Bender: It's very vague. I mean, it has to be. How can you design -- even probable cause, which is a much higher standard, how did you define when a policeman has probable cause snits impressionistic things based on experience, and you can't confine it and therefore it is libel to be used in a discriminatory way. And in this situation where there have been discriminatory enforcements in the past so often, to me one of the main reasons why I answered your first question was I don't like the bill, is because it instills fear in people. People with perfectly legal -- that have lived here for generations, may be afraid to go out in public because they'll be hassled because of this. They may be picked up because of this. Fit was necessary to do that, to solve a big problem, I could understand it. But this isn't going to solve the problem that's real. Violence on the border, of drug smuggling, of gang activity. It's not -- they're not going to be deterred by this, they're already committing a crime. So commit one little minor state crime isn't going to stop them.

Ted Simons: We've got about 30 seconds. When the governor and Republican lawmakers say that Hispanic-Americans have nothing to fear because they're here legally and no one is going to cross the street and come get them, you're saying that's not necessarily true.

Paul Bender: They can tell them they have nothing to fear, but that doesn't mean people won't fear. Because the fear is based on the past, and the fear is based on things people say, and I think it's probably going to be a common fear that people will be treated unfairly.

Ted Simons: All right. It's good to see you, thanks for joining us.

Paul Bender:ASU Law Professor;

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