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Monday, June 25, 2012

Shorter Libertarian: Arizona SB 1070: Executive Branch Mostly Right, Legislative Branch Ridiculously Inept, Supreme Court Does the Best It Can

Democrats are claiming victory today because of the Supreme Court's decision to strike down 75% of the controversial segments of Arizona's SB 1070 Immigration Law. At the same time, Republicans are claiming victory because the Supreme Court upheld the provision that allows Arizona law enforcement officers to request immigration status with probable cause.

I'm in the interesting position of sort of agreeing with some people while at the same time completely disagreeing with everyone. And although I take the Obama Administration to task on just about everything, I am in more agreement with the President than I am with the opposition on this one. Read the Supreme Court's decision here so you won't have to trust other people to tell you what happened.

Its important to note that the Court's decision recognizes the problems facing Arizona.
"Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, "DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed." The problems posed to the State by illegal immigration must not be underestimated."
There were four provisions of SB 1070 that were at issue.

SB1070 Section 3

Section 3 made it a State criminal offense to fail to comply with federal alien registration requirements. Section 3 was struck down for the following reasons:
"Were [Section 3] to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies."
"There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is appropriate, there is an inconsistency between §3 and federal law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon)."
 In short, Section 3 attempted to over-ride existing Federal statutes, which is un-Constitutional.

SB1070 Section 5

Section 5 made it a misdemeanor for an unauthorized alien to seek or engage in work in the State of Arizona. Section 5 was struck down because existing Federal law allowed only for civil penalties and not criminal penalties. The opinion went on to say: 
"The legislative background of IRCA underscores the fact that Congress made a deliberate choice [in the 1986 Immigration Reform Act] not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be 'unnecessary and unworkable.'”
In short:


"[SB1070] would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens."

SB1070 Section 6


Section 6 authorizes law enforcement officers to arrest persons "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States" without a warrant.

The Court wrote:
"As a general rule, it is not a crime for a removable alien to remain present in the United States. If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear."
"The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention 'pending a decision on whether the alien is to be removed from the United States.'"
"Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers."
Basically, the States do not have the authority to arrest and deport an individual because that falls under the auspices of the Federal government.
SB1070 Section 2B

Section 2B "requires state officers to make a 'reasonable attempt . . . to determine the immigration status' of any person they stop, detain, or arrest on some other legitimate basis if ' reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.'"
The Obama Administration argued that his provision interfered with the current immigration scheme, while the Arizona law contained three provisions the Court upheld:


"Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers 'may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s].'

Arguments against this provision stated that persons would be subjected to longer-than-necessary detentions for simple infractions like jay-walking or minor traffic violations, but the Court upheld that the words "reasonable attempt to determine" (i.e. contact I.C.E.) are considered in SB1070.
Third, the provisions must be "implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens."

In the United States vs. Arizona the United States Supreme Court defended the US Constitution against what ultimately became a power struggle between a sovereign State and the Federal government. The State of Arizona was correct in pursuing a course of action as a result of the vacuum of authority left by an inept Congress and a foundering Executive Branch, but it went about it the wrong way. The people of Arizona would have been better served if the State of Arizona had sued the Federal government for failing to protect the citizens of Arizona from the burdens caused by the Federal inability or lack of desire to tackle the immigration problems faced by the border states.

The people of Arizona did not necessarily win today, neither did Democrats or Republicans, but the Constitution won, although it was a close one. SB1070 will surely wind up in the court system again, possibly even the Supreme Court, but until Congress and the Executive Branch act decisively to protect law-abiding citizens who are under siege from nearly uncontrolled immigration in certain areas of the country, there will be no clear cut solution to Arizona's problems.

From a libertarian point-of-view, any law that unnecessarily abridges the freedom of any person is a danger to the freedom of all. That is why I did not support Arizona SB1070. At the same time, I understand the frustrations felt by the citizens and law enforcement officers in the State of Arizona, and even though the law was Constitutionally mis-guided, it may ultimately serve the purpose of causing Congress to get up off their collective backsides and do something for the good of all -- law-abiding citizens and immigrants looking to live a better life alike.

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