Tag: Arizona

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!

A Neocon’s ‘Catastrophe’

Mexican President Felipe Calderon comes to the United States and registers his objection to the recently enacted law in Arizona during a press conference and in a few sentences in an address to Congress.

Bill Bennett calls Calderon’s actions a “catastrophe.”

Neoconservatives like Bennett do not see the drug war and the Iraq war policies as catastrophes.

Enough said.

The Ninth Circuit as a Denial of Service Attack on American Justice

The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.

Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case

Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.

If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.

Misguided Fears of Crime Fuel Arizona Immigration Law

Arizona’s harsh new law against illegal immigration is being justified in part as a measure to combat crime. The murder of an Arizona rancher in March, allegedly by somebody in the country without documentation, galvanized support for the bill.

The death of the rancher was a tragedy, and drug-related violence along the border is a real problem, but it is a smear to blame low-skilled immigrant workers from Latin America for creating a crime problem in Arizona.

The crime rate in Arizona in 2008 was the lowest it has been in four decades. In the past decade, as the number of illegal immigrants in the state grew rapidly, the violent crime rate dropped by 23 percent, the property crime rate by 28 percent. (You can check out the DoJ figures here.)

Census data show that immigrants are actually less likely to commit crimes than their native-born counterparts, as I unpacked a few months ago in an article for Commentary magazine titled, “Higher Immigration, Lower Crime.”

“Papers, Please” in Arizona

The Arizona legislature recently sent Senate Bill 1070 to the governor.

According to this summary from the Arizona legislature, the bill would require Arizona officials and agencies to determine the immigration status of any person with whom they have “lawful contact” where reasonable suspicion exists regarding the immigration status of the person. Any person arrested in Arizona would also have to have their immigration status established and verified with the federal government before they were released.

The documents that can be used to prove legal immigration status under the bill include a valid Arizona driver license, a valid Arizona nonoperating identification license, a valid tribal enrollment card or other tribal identification, or a valid federal-, state- or local-government-issued identification, if the issuing entity requires proof of legal presence before issuance.

If the governor signs the bill, what creates “reasonable suspicion” about immigration status is a question that will have lawyers busy for years.

I’m interested in how well practiced Arizonans and Arizona government officials will become at checking the papers of people in their state. I have little to worry about, of course, because I’m not an illegal immigrant.

UCSB history professor Harold Marcuse maintains a fascinating web page about Martin Niemöller’s famous quotation. There are many versions of it in its long history, and there may yet be more.

Taxpayer Choice + Parental Choice = Education Reform That’s Constitutional

Arizona grants income tax credits for contributions made to school tuition organizations (“STO”).  These STOs must these donations for scholarships that allow students to attend private schools.  This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend. 

The Ninth Circuit held that the tax credit program violated the Establishment Clause because many of the STOs – as it happens, a decreasing majority – provide scholarships for students to attend parochial schools.  Counsel for the defendants, including the Institute for Justice, asked the Supreme Court to review the case – and indeed to summarily reverse the Ninth Circuit, based in part on a 2002 case (Zelman v. Simmons-Harris) rejecting a similar challenge to a school voucher program.  Cato filed a brief, joined by the Foundation for Educational Choice and the American Federation for Children, supporting this request. 

Our brief argues that the funds received by STOs are the product of individual taxpayers’ “genuine and independent choice” – the touchstone by which the Court judges the religious neutrality of statutes allowing for taxpayer money to fund religious education.  Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster.  While the Ninth Circuit reasoned that Arizona parents feel pressured to send their kids to parochial schools due to limited scholarships available for secular schools, it failed to consider that the share of STO money available to secular schools was nearly twice as large as the share of families choosing to send their children to secular schools. 

Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it.  More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled. 

The name of the case is Arizona Christian School Tuition Organization v. Winn.  The Court will likely decide before it breaks for the summer whether to take it up – and, indeed, whether to summarily reverse the Ninth Circuit.

K-12 Education Tax Credits Save Millions

The latest fiscal impact review of Arizona’s scholarship tax credit programs estimates that they saved between $44 million and $186 million last year.  The programs offer individuals and businesses dollar-for-dollar tax credits if they make donations to non-profit K-12 scholarship-granting organizations. Those organizations, in turn, provide private school tuition assistance.

This is much higher than the savings estimate offered by the Arizona Republic last month, as the AZ Republic story linked above is quick to point out. I deal with the reasons for the discrepancy below, but first, here’s the crucial fact that the Republic has missed yet again: if the tax credit programs were significantly expanded, such as by raising the donation caps, the state would undeniably save many hundreds of millions of dollars annually. In fact, if the share of AZ schoolchildren participating in the program rose to just 40 percent, taxpayers would save billions of dollars a year – even if the size of the individual scholarships had to triple to achieve that result.

The Republic’s failure to report that inescapable and rather important fact does it no credit.

Now, on to the reason for the discrepancy in savings numbers. The body of the story hints at it: the Republic’s estimate assumed that private school enrollment would have been flat or increasing without the tax credit program, while the latest estimate does not.

As I pointed out at the time, the Republic’s assumption is demonstrably mistaken. Official AZ statistics show that enrollment in private schools peaked before the tax credit program had gotten under way, and had begun to decline as a result of rapid growth in the (tuition-free) charter school sector. So the Republic’s savings estimate was almost certainly too low.

As the author of the latest study admits, his assumptions about the true number of students who have migrated to private schools as a result of the program are speculative, but at least they are reasonable and not obviously erroneous, as the Republic’s were. In any event, the savings from a much larger migration to the private sector are not in doubt.