A Legal Analysis of the New Arizona Immigration Law

I’m a bit late to the immigration party – in part because I’ve been traveling on my Obamacare debate tour and in part because the Kagan Supreme Court nomination and end-of-term Supreme Court decisions have sucked away all my time.  Still, I do have a few things to add beyond Dan Griswold’s excellent points about what real immigration reform would look like and why Arizona’s new law, love it or hate it, at least has the benefit of raising the need for such fundamental reform into the national political discussion.  (Jeffrey Miron also offers some sensible suggestions, and Roger Pilon points out that doing nothing is simply not tenable as a matter of policy or politics.)

First, the Arizona law – which I’ve actually read, unlike the attorney general and the secretary of homeland security – is carefully crafted so as not to go beyond the scope of federal law and so, as Dan alludes in his thoughtful podcast (drawing on discussions with Roger), is probably constitutional.  Here are the key things it does:

  1. Creates the new state crime of “trespassing by illegal aliens,” which essentially consists of being in the state in violation of federal immigration laws as determined by an officer or agency authorized by the federal government to verify immigration status;
  2. Sets out that no official or agency of the state or its political subdivisions (county, city, etc.) ”may adopt a policy that limits the enforcement of federal laws to less than the full extent permitted by federal law;”
  3. State (and local) law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” of any person with whom they have made “lawful contact … where reasonable suspicion exists that the [detained] person is an alien who is unlawfully present in the United States;”
  4. If an alien who is unlawfully in the United States is convicted of violating any state or local law [including the new “trespassing by illegal aliens”], the alien “shall be transferred immediately [on discharge from imprisonment or assessment of fine for the offense] to the custody of the [federal immigration authorities];”
  5. A police officer “may lawfully stop any person who is operating a motor vehicle of the officer has reasonable suspicion to believe the person is in violation of any civil traffic law and [the the pre-existing law against human smuggling];”
  6. Makes it illegal to stop to hire or pick up passengers for work if the vehicle “blocks or impedes the normal  movement of traffic;”
  7. Makes it illegal for an illegal alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor;
  8. Makes it illegal for anyone violating the law (including the new illegal hiring law, as well as pre-existing prohibitions on hiring illegal aliens) to transport, move, conceal, or harbor persons who the alleged violator knows to be illegally in the United States, as well as to encourage or induce aliens to come to Arizona illegally;
  9. Provides an entrapment defense to the pre-existing crime of employing illegal aliens (whether knowingly or intentionally); and
  10. Authorizes the immobilization or impoundment of vehicles used to committ various vehicle-related offenses relating to illegal aliens.

None of these provisions, on their face, appear to be unconstitutional, in the sense of Arizona intruding on federal authority over immigration policy.  Indeed, as reported last week by the Washington Post, this conclusion is backed by a 2002 memo from the Office of Legal Counsel – the Department of Justice unit that acts as the executive branch’s “outside counsel.”  This memo concludes: first, that states have “inherent power” to make arrests for violating federal law and, second, ”federal statutes should be presumed not to preempt this arrest authority.”  OLC memos are not law themselves but they are the DOJ’s official position on various legal issue.  Having said that, an OLC memo can at any time be withdrawn or replaced – as indeed the 2002 memo replaced an earlier 1996 memo on the subject (or, more famously, Jack Goldsmith withdrew the so-called “torture memos”).  And, of course, Congress could pass a law saying states shall not enforce federal immigration laws.

Second, notwithstanding the new law’s facial constitutionality, state or local law enforcement officials could use it to behave in a way that intrudes on federal prerogatives or violates constitutionally protected individual rights.  That circumstance could give rise to an “as-applied” legal challenge.  If police officers stop Hispanic motorists on pretextual grounds just to ask for their papers, for example, that would constitute a Fourth Amendment violation.  Notably, however, the sections relating to state enforcement of federal immigration laws contains a provision specifying: “This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Third, just because the law is constitutional doesn’t necessarily mean it’s good policy (just like not everything that some people say is good policy – like Obamacare, or torture during interrogations – is necessarily constitutional).  There are many arguments against the Arizona law unrelated to civil liberties or racial profiling concerns, including that it misdirects state and local resources away from more pressing priorities (such as violent crime); that it’s driven by misguided fears of crime (when crime has actually been dropping in Arizona, and nationally the foreign-born commit crimes at lesser rates than the native-born); and that an “enforcement-first” mentality gets things backwards in that we should first reform and expand the ways people can come here legally and then take action against those who still come illegally.  Similarly, there are many arguments in favor of the Arizona law not based in racism, or political opportunism, or misapplied economics. 

Fourth, the boycotts of Arizona adopted by city councils around the country – at last count, Berkeley, Boston, El Paso, Los Angeles, Oakland, San Francisco, St. Paul, and West Hollywood have all passed resolutions restricting official travel, investment, and/or contracts with the Grand Canyon State – are likely themselves unconstitutional.  That is, unlike private individuals, organizations, and businesses, states (and their political subdivisions) cannot erect barriers to trade against other states.   Preventing such interstate discrimination was, of course, one of the original purposes of the Constitution and, specifically, its Commerce Clause (which grants Congress the power to regulate interstate commerce).  We often discuss the Commerce Clause in terms of Congress incorrectly invoking it to justify legislation not having anything to do with either commerce or interstate activities – such as, again, the individual health care mandate – but just the same it protects economic liberty by forestalling trade wars.  (Technically, the issue here is the “dormant” Commerce Clause in that cities are intruding on the boycott-less regime Congress has established by not passing boycott laws.)  Lo and behold, Gary Pierce of the Arizona Corporation Commission sent a letter to L.A. Mayor Antonio Villaraigosa threatening to cut-off the 25 percent of its electricity that the City of Angels gets from its eastern neighbor.  “I am confident that Arizona’s utilities would be happy to take those electrons off your hands,” the commissioner says.  Stopping this sort of tit-for-tat silliness – along with being able to better muster national armies – is why we got rid of the Articles of Confederation.

In short, the Arizona immigration law presents a tremendously complex issue, as the Arizona Republic has recognized, that does not lend itself to easy calls or soundbites.  I myself am not certain how I would have voted if I didn’t have the third option (as Arizona doesn’t) of imminent federal reform – to the disconsolation of state legislators around the country who have asked me what they can do to placate a (legitimately) aggrieved public besides enactiong Arizona-style laws.

President Obama and Congress, pass comprehensive immigration reform now!