UPDATE: The American Civil Liberties Union, Mexican American Legal Defense and Educational Fund and the National Immigration Law Center are set to announce in Phoenix on Thursday plans to challenge the measure. U.S. Atty. Gen. Eric Holder said this week that he was considering a possible legal challenge to the law. [More here]
Despite concerted efforts to thwart the passage of Arizona’s new immigration legislation, the bill was signed into law by Governor Jan Brewer on April 23rd. The bill now has the nation in an uproar – it has prompted nationwide protests, and sparked a renewed commitment to tackling national immigration policy in Congress.
Homeland Security Secretary Janet Napolitano has expressed her “deep concern” about the barrier the new law will create between law enforcement and crime victims. President Obama referred to the legislation as “misguided.” Even Republican Senator Lindsey Graham, a staunch adversary of moving on immigration reform, admitted today that he feels the Arizona law is unconstitutional.
In upcoming months, we can expect a litany of lawsuits challenging the legislation from a number of different fronts. The American Civil Liberties Union of Arizona is exploring legal action, and the Department of Justice is reviewing the law’s constitutionality. Most legal challenges are likely to focus on state pre-emption of federal law; this is how similar anti-immigrant laws were overturned in the past. Legal experts offer mixed opinions as to whether such an argument can effectively defeat the law. AP reports:
Kevin Johnson, dean of the law school at the University of California-Davis and an immigration law professor, said such a lawsuit would have a very good chance of success. He said the state law gets into legal trouble by giving local law enforcement officers the authority to enforce immigration laws.
However, Gerald Neuman, a Harvard Law School professor, said Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.
Kris Kobach, a University of Missouri-Kansas City law professor who helped write the Arizona legislation, said he anticipated legal challenges and carefully drafted the language. He said the state law is only prohibiting conduct already illegal under federal law.
From a historical perspective, Thomas A. Saenz of the Mexican-American Legal Defense and Educational Fund points to a similar law enacted in California twenty years ago:
The federal court struck down Proposition 187 as an unconstitutional attempt to regulate immigration, which is a role that belongs exclusively to the federal government. [Arizona's] SB 1070 is an even more direct attempt to establish the state’s own immigration law and enforcement scheme.
Yet it remains difficult to predict what would happen should a legal challenge reach the supreme court. New York Times columnist Linda Greenhouse points to an ominous hint from a 1982 case in which the Court overturned a Texas law prohibiting undocumented children in public school:
In 1982, hours after the court decided the Texas case, a young assistant to Attorney General William French Smith analyzed the decision and complained in a memo: “This is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have.” That memo’s author was John G. Roberts Jr.
Another issue to consider is legal protection against racial profiling and discrimination, which many claim the new law promotes. According to Baylor Law Professor Laura A Hernandez, the new requirement to carry identification papers “will place an additional burden/requirement on citizenship for those of Hispanic descent which also appears to violate the Equal Protection Clause of the United States Constitution.” The clause requires states to apply the law equally to all persons regardless of race, socio-economic status, or citizenship.
Posted by Mary Tharin