In April 2010 Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act. This controversial bill caused a deep public outrage. The new Arizona law became of the source of a plenty of debates among legal scholars, human rights activists, various non-governmental and organizations. The law also attracted attention of some top governmental officials. Even President Obama expressed his position towards this law. In particular, President Obama pointed out that the new law threatens to to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe (Archibold, 2010). Media also put various labels on the new law. The labels varied from referring to the law as to the evolutionary step forward to denominating the US as a Nazi Police State (Burgess, 2011).
The reason why the law attracted extraordinary attention is that it regulates the sensitive issues of immigration. Immigration is a hot issue not only in Arizona but in the whole country. The US constantly admits a great number of newcomers. In fact, the US was built as a country of immigrants. Since the colonial times, the US has been an attractive destination for people all over the world. People came here to find religious freedom, to acquire land, to raise wealth and so on. In a word, people came to the country to pursue their dreams. For many of them the American dream became a reality. However, immigrants were not always welcomed in this country. They become especially unwelcome in times of financial distress. Today, the US is not in its best shape, as far as economy is concerned. Economic recession coupled with the illegal immigration becomes a source of concern for many Americans. The federal government finds it difficult to give an effective response to the problem of illegal migration. Therefore, some states attempt to address the problem on their own. Arizona responded to the problem by enacting a controversial law. The controversy is that, according to some commentators, this law paves a path to potential racial discrimination. The dispute between proponents and opponents law was resolved by courts. Recently, the US Supreme Court issued its decision on the constitutionality of the Support Our Law Enforcement and Safe Neighborhoods Act. The current paper is an attempt to look at the background of the controversial law and its potential implication and to analyze the recent decision of the Supreme Court.
Part I: Support Our Law Enforcement and Safe Neighborhoods Act
The Problem of Illegal Immigration in Arizona
As a state located near the US-Mexico border, Arizona has always been one of the major destinations for illegal migration. At this point it is important to note that the US-Mexico border is especially vulnerable, when it comes to illegal migration. According to the United Nations Office on Drugs and Crime (2011) (UNODC) the majority of human trafficking, which is a direct source of illegal migration, takes place at the US-Mexico land border. Since the beginning of the 1990s the immigrant population in Arizona has grown significantly. Thus, the foreign-born population has grown from 268,700 in 1990 to 830,900 in 2004 (Gans, 2008). The increase rate, is, indeed, great. The majority of illegal immigrants come to the country in search of job opportunities. Since illegal immigrants are undocumented, in the vast majority of cases they do not have prospects for legal employment. Therefore, they turn to illegal employment. The possibility of illegal employment is considered to be one of the factors, which fuels illegal immigration.
Illegal immigration raises many concerns. In particular, it is often argued that illegal immigration has a detrimental impact on the US economy. To a certain extent it is true. First, illegal immigration is associated with the increase of public expenditure. Bales Soodalter (2010) reveal that the federal government spends about $ 200 million yearly to combat human trafficking and slavery problems. Second, the increase of the number of illegal immigrants also drains the federal and local budgets. According to Barns (2010), illegal migration costs approximately $113 billion a year. Thus, illegal immigrants incur significant healthcare expenditures. It is true that under the Arizona Medicaid program are not entitled to receive any health benefits (Hansen, 2010). However, under the federal law, illegal immigrants are entitled to obtain an emergency treatment (Hansen, 2010). The emergency treatment is not compensated by illegal immigrants. Therefore, it is the state budget, which bears the associated expenses. For instance, in Arizona, uncompensated care provided for illegal immigrants constituted $ 24 million (Hansen, 2010).
Naturally, the detrimental economic impact of illegal immigration triggers the negative attitude towards it. It is especially evident in the Arizona case. The mayor of the third largest Arizonian city, Mesa, acknowledges that there is an immigration fatigue in Arizona (Nagourney, 2012). He also points out that the main impact of illegal immigration, which raises concerns among Arizonian society is the tough job situation (Nagourney, 2012).
Overall, one may observe that Arizona is heavily affected by the illegal immigration issues. The state is one of the most popular destinations for illegal immigrants, largely due to its geographical position. The problems caused by the illegal migration raise many concerns in the local society. All this fuels political discussion over the illegal immigration issue in the state. The political discussion, in its, turn results in enacting of various immigration laws designed to reduce illegal immigration.
In order to understand why the Support Our Law Enforcement and Safe Neighborhoods Act came into existence, one should look at the recent history of the Arizona immigration law. As the illegal immigration grew, the legislation became tougher. In 1996 Arizona adopted the law requiring proof of person's legal status in order to obtain a driver's license (Azcentral, 2012). In 1998 the Republican Senator proposes a bill, according to which one should show his or her ID at the polls (Azcentral, 2012). However, the bill failed in the Senate. Then in 2000 Arizonian voters approve the requirement for English immersion at schools, which meant, in fact the ban of bilingual education (Azcentral, 2012). Furthermore, in 2004 the voters endorse Proposition of 200, which prohibits giving public benefits to individuals, who are not legally in the country (Azcentral, 2012). In 2006 the bill which criminalized the illegal stay in the country was introduced (Azcentral, 2012). This bill also allowed the police officers to inquire an individual about his or her immigration status. The bill was vetoed by then-governor Janet Napolitano. The year of 2006 was also marked by endorsement of measures designed to limit the rights of illegal immigrants. Thus, voters approved the recognition of English language as a state language (Azcentral, 2012). Also, denying bail to illegal immigrants charged with crimes. Additionally, voters endorsed a measure, requiring out-of-state tuition for those, who cannot prove their citizenship. In 2007 Arizona enacts the law which imposes fines on employers, who were found to have employed illegal immigrants (Azcentral, 2012).
Finally, in 2010 senator Pearce introduced Senate Bill 1070, which subsequently became the Support Our Law Enforcement and Safe Neighborhoods Act. Senator Pearce drafted the bill jointly with Kris Kobach, who is associated with the Federation for American Immigration Reform. Kobach is known for developing immigration-related bills in other parts of the US. When the bill reached the legislature, it gained thirty-six co-sponsors. The bill passed the Senate. Then the amended version of the bill passed the House. In April 2010 the bill was signed into the law by Governor Brewer.
The Key Points of the Support Our Law Enforcement and Safe Neighborhoods Act Are:
- Ban of restrictions on the enforcement of the federal immigration laws;
- Grant to police officers an authority to arrest a person without warrant if the officer has a probable cause to believe that the person has committed any public offense that makes the person removable from the United States (Support Our Law Enforcement and Safe Neighborhoods Act, Art.8);
- Permit to trace the illegal status of an alien upon reasonable suspicion based on the lawful contact of law enforcement official;
- Permit to maintain the information relating to the immigration status of any individual or exchanging this information with any other federal (Support Our Law Enforcement and Safe Neighborhoods Act, Art.8).
It is the provisions regarding the authority of police officers to determine the illegal status and to arrest without a warrant are seen as the main controversial provisions of the law. One of the strongest arguments against these provisions is that they can give a rise to racial profiling. In order to understand this argument, one should look at the racial context of the law.
There are a great number of Hispanic people in Arizona. The number grows more or less steadily. Between 2000 and 2010 the Hispanic population of the state has increased by 46 %. The increase of the Hispanic population was fixed all over the state: in the border counties of Santa Cruz, Pima and Yuma, in the Phoenix metropolitan area, and in the remote MohaveCounty (Lacey, 2011).In 2010 the one-third of Arizonas residents was Hispanic. Furthermore, 87 % of the Arizona's Hispanic residents identify themselves as Mexicans.
It is not surprising that the growing Hispanic population literally changes the face of Arizona. A political columnist of the Arizona's largest Spanish-language media source marks: Without a doubt, wherever you turn, there are Latin people (Lacey, 2011). The Spanish name Isabella is among the post popular girls name in Arizona (Lacey, 2011).
Overall, the significant presence of Hispanic residents in Arizona determines its ethnic diversity. As far as the new immigration law is concerned, there are reasonable fears that the police officers empowered with the authority to question the legal status of an individual, will make their judgments based on the appearance of individuals. In simple terms, the police officer, seeing a Latino person, may ask her to prove the legal status. It is true that the only reason for such request can be the appearance, because it is well-known that in Arizona illegal immigrants come mainly from Mexico and Latin America.
An appearance is a very relevant issue when it comes to the inquiry and search and seizure authority of law enforcement officers. In United States v. Brignoni-Ponce the Supreme Court considered the issue of whether the US Board Control has the authority to question the occupants of cars in areas near the Mexican border about their immigration status and citizenship. The government submitted that specifically trained officers are able to recognize individuals from Mexico, taking into account a haircut and the mode of dress. The Supreme Court pointed out that: likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.(United States v. Brignoni-Ponce).
The Court ruled that it is not reasonable under the Fourth Amendment to make stops on random in the area of the Mexican border to question the occupants of cars about their immigration and citizenship status.
The Arizona courts also seem to acknowledge that ethnicity and appearance can become a very relevant factor, when it comes to the enforcement of immigration laws. Thus, in State v. Graciano the Arizona Supreme Court acknowledged that enforcement of immigration laws often involves a relevant consideration of ethnic factors. At the same time, the Court noted that the legality of detention or stop based on an officer's intuition supported mainly by the race or ethnic background was never upheld. The Arizona Supreme Court pointed out that, however, ethnicity can be a part, although not the main one, of totality of circumstances used to justify a stop.
In a word, the courts acknowledge that ethnic background can be a relevant factor when an officer makes the decision about the stop or inquiry. However, they emphasize that it should not be the main factor.
Part II: Legal Battle
Lawsuits Against the New Law
One of the lawsuits designed to challenge the constitutionality of the Support Our Law Enforcement and Safe Neighborhoods Act was a suit filed by officer Salgado against Governor Brewer. The plaintiff claims that the new immigration law encourages police officers, including him, to stop and detain persons, and to inquire person about her residence status, based on based on the reasonable suspicion about illegality of status of an individual (Salgado v. Brewer). Salgado further specifies that he frequently interacts with persons of Mexican or Latin American origin. Many children of Mexican and Latin American origin, according Salgado, have a poor knowledge of English. The officer reveals that he reasonably suspects that some of Mexicans and Latinos, with which he communicates, are illegally in the country. Salgado claims that the new law allows him to stop and question these people. However, Salgado points out that if he would do so he could be sued for the violation of civil rights. Escobar v. Brewer is essentially the similar case, which was also initiated by the police officer.
Also, Frisancho, a resident of D.C. of Hispanic origin, who was born in the US, filed a lawsuit against Governor Brewer. Frisancho planned to visit Arizona and to take part in research the operation of the local law enforcement agencies to capture undocumented immigrants (Frisancho v. Brewer). Frisancho claimed that the new law deprives him the right, privileges and immunities guaranteed by the US Constitution and Federal laws. Frisancho also claimed that Arizona has no authority to set forth its own immigration laws and that the new act violates the due process clause (Frisancho v. Brewer).
There were also class actions to challenge the law. In cases Friendly House v. Whiting and National Coalition of Latino Clergy and Christian Leaders v. State of Arizona non-profit organizations and individuals joined efforts to strike down the controversial law. The claims in these two cases are essentially the same and they are concerned with the unconstitutionality of the SB1070. One of the class action cases, League of United Latin American Citizens v. Arizona, contained the claim that training materials, which were released to educate the law enforcement officers on how to enforce the new law, brought additional controversy between the Constitution and federal law on one hand, and the Arizona law, on the other one.
One may observe that the law became a target for many individuals and non-profit organizations. The fact that the law triggered a number of lawsuits indicates the whole controversy of the measures provided by the act. However, the most important lawsuit is the one filed by the federal government. The case was considered by the Supreme Court, which finalized the legal debate over the constitutionality of the Support Our Law Enforcement and Safe Neighborhoods Act.
Arizona v. United States
In Arizona v. US the federal government filed a lawsuit against Arizona. The federal government sought to enjoin SB 1070 as preempted by the federal law. The Supreme Court considered four provisions of the Support Our Law Enforcement and Safe Neighborhoods Act. Thus, the Court considered provisions designed to criminalize failure to comply with the federal immigration legislation. The new law qualifies the failure to comply with federal alien-registration regulations a state misdemeanor (Arizona v. US). Also, the new law makes an attempt by an unauthorized alien to work in Arizona a misdemeanor. Two other provisions are concerned with the authorities of law enforcement agencies. The Court considered the authority to arrest without a warrant a person the officer has probable cause to believe ... has committed any public offense that makes the person removable from the United States (Arizona v. US). Another provision was the requirement to verify the person's immigration status with the federal government when officers conduct stop, detention, or arrest.
As far as criminalization of failure to comply with alien-registration requirements is concerned, the Supreme Court has ruled that the criminalization is preempted by the federal law. The Supreme Court points out that the federal government has occupied the field of alien registration. The Court further notes that when the Congress occupies the entire field, there is no room for any complementary state regulation. The Court, thus, concluded that since the Congress occupied the alien registration field, the addition regulation by Arizona is not permissible.
Also, the Supreme Court found that criminalization of work or an attempt to work by an unauthorized alien is preempted by the federal law. On the one hand, the court found that in this field there is no concurrence of federal and state legislation. The Court points out that in this case the law enacts a state criminal prohibition where no federal counterpart exists(Arizona v. US). The Supreme Court explained that at the federal level, there is no any comprehensive program, which would address the employment of unauthorized aliens. The Court specified that the federal employment law only prohibits employers to hire, recruit and employ unauthorized aliens. However, the federal law says nothing about prohibition for unauthorized aliens to work or to attempt to work. On the other hand, the Court finds that both federal and state law aims to achieve the same goal to deter the unlawful employment. The Supreme Court opined that the state methods of enforcement of these goals are in conflict with the federal ones. For this reason, the Court concluded that the provision concerned is preempted by the federal law.
The Supreme Court upheld the provision, giving the authority to police officers to verify the person's immigration status with the federal government while conducting a stop, detention, or arrest. However, the Court notes that this provision is subject to limits, which are embodied in the provision itself. Thus, the Court specifies that there should not be a presumption that an alien stays in the US illegally, if he or she demonstrates a valid Arizona driver's license or similar identification. Also, the Court points out that law enforcement officers may not consider race, color or national origin ... except to the extent permitted by the United States [and] Arizona Constitutions] (Arizona v. US). Finally, the provision 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 (Arizona v. US). It seems that for the Supreme Court these limits are enough to uphold the provision as constitutional. At the same time, the Court merely felt that it would be wrong to hold this provision as preempted before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives (Arizona v. US).
Finally, the Supreme Court found that the provision allowing warrantless stop, detention and inquiry as preempted by the federal law. The Supreme Court explained that the Congress established the system, which in the vast majority of cases does not allow warrantless stop and detention. Only in very specific, limited circumstances such stops and detention can occur legally.
Arizona v. US became a final point in intensive and sometimes, emotional debate about the SP1070 and its potential for racial profiling. One of the main concerns about the law was that it may encourage racial discrimination. Ironically, it is the provision, which gives grounds for such a fear, was upheld by the Supreme Court. The decision in Arizona v. US gives a confused impression. On the one hand, the Supreme Court struck down provisions tough provisions criminalizing failure to comply with federal law and attempt to get employment by unauthorized aliens and the provision allowing warrantless stop and detention. On the other hand, the Supreme Court, in fact, upheld the provision, which is likely to promote racial profiling. It is very likely that police officers would have grounds to believe that, for instance, some Mexican-looking person's stay in the country is illegal. It is yet to be seen whether the verification provision will cause racial discrimination. However, even now it is possible to say that the likelihood that the racial profiling and discrimination will become the result of the law is very high.