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Thursday, June 10, 2010

Law and Society Boycott Resolution Gets Arizona Immigration Law Wrong

Arizona's new immigration law, SB1070, is complex, vague, long, larded with drafting errors, and designed by its creators to test the limits of a dozen or more legal principles.  Therefore, it is hardly surprising that it is difficult to parse.  It also raises strong opinions (and, possibly more importantly, strong feelings) on both sides.  Accordingly, again, unsurprisingly, the combination of passion and complexity has resulted in a number of unequivocal, emphatic, and inaccurate claims about the law, including by the Governor and by the principal sponsor of the law, Sen. Russell Pearce, who claim that SB1070 prohibits racial profiling when it clearly authorizes it.  Whatever one's view of the merits, the debate should rest on precise and accurate understandings about the determinable features of SB1070. 

I recently criticized mistakes in an op-ed by an apparent supporter of SB1070.  The fairness doctrine is still in force in my universe, so I will apply the same scrutiny to a critic of the law, a group of which I am a member and a friend, the Law and Society Association.  At their recent meeting, the LSA Board of Trustees vowed to boycott Arizona.  Their resolution misdescribes the law in several ways, described after the break.

Among their reasons for the boycott was the following: "This legislation creates a constitutionally questionable crime of trespass for being in the state without appropriate documents."  This is an error.  An earlier version of Section 3 of the bill, adding Arizona Revised Statutes section 13-1509, used the "trespass" concept, but the version that became law did not, instead borrowing document and registration requirements from federal law.  Of course, with a recently passed bill that was almost immediately amended, confusion is understandable; Linda Greenhouse acknowledged making the same error in a column in The New York Times.  But this change may be legally significant:  Policy entrepreneur Kris Kobach, the putative author of the bill, claims that states can't make up their own immigration laws, but can enforce existing federal ones, including through state statutes.  (see page 475 et seq. of this article)

The resolution also states: "The new law makes police vulnerable to litigation from anyone, resident in Arizona or not, for failing to take active steps to determine immigration status."  But Section 2 of the bill, adding A.R.S. 11-1051(H), provides that "a person who is a legal resident of this state may bring an action in superior court " to enforce the provisions of the law--not anyone.  The resolution is simply wrong in suggesting that non-Arizonans can sue.

Finally, the resolution states: "Citizens and legal residents who appear Hispanic/Latino will inevitably become the targets of increased scrutiny, intrusive questioning, possible harassment, and perhaps detention. Those who cannot prove their right to remain will be subject, not only to deportation, but to a jail term."  The first sentence is true, but, for better or (in my opinion) for worse, the Supreme Court has already authorized racial profiling in immigration enforcement, and held that race-based stops do not violate the Fourth Amendment.  The LSA understandably does not want to hold conferences in a discriminatory jurisdiction, but if that principle governs, it can't meet anywhere in the land of the free and the home of the brave. Arizona incarcerates African Americans and Hispanics at a higher rate than whites, but Arizona's disproportionality is the same as the national average according to The Sentencing Project.  Illinois, where the LSA annual meeting just took place, has greater disproportion for both African Americans and Hispanics.

The second sentence ("Those who cannot prove . . .") is not justified by anything in the text of SB1070.  To be sure, in the southwest, there is an ugly history of illegal deportation of U.S. citizens. But even this singularly aggressive and extreme statute does not purport to provide for deportation by state courts or officials.  Deportation remains a federal power, with an exclusively federal adjudication apparatus, and SB1070 makes it no more or less likely that the federal authorities will illegally deport citizens or lawful residents.  And nothing in this law alters the principle applicable in Arizona and elsewhere that in criminal cases guilt must be proved beyond a reasonable doubt before conviction and sentence.  Assuming arguendo that some parts of the Arizona statute are valid, there will still have to be proof beyond a reasonable doubt that a defendant is undocumented etc.

None of this is to say the boycott is unjustified (although for the record, while I respect others' views, it is unlikely to be effective and will hurt low-wage workers).  However, the law should stand or fall in the court of public opinion based on its actual characteristics.  The law will stand or fall in the U.S. District Court for the District of Arizona based on the brief in support of the motion for a preliminary injunction against SB1070, available here.

Posted by Marc Miller on June 10, 2010 at 09:04 AM | Permalink


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1. I count SB1070, as amended by HB2164, as 19 pages, not 10. http://www.azleg.gov/alispdfs/council/SB1070-HB2162.PDF SB1070 is long for a criminal statute--compare it to the whole business and commercial frauds section of the Arizona code, which creates seven crimes in a variety of areas (starting at ARS 13-2201).
2. SB1070 certainly was not drafted to survive legal challenges. It was drafted to provoke legal challenges to find out what the outer limits of the law are. Example: Section 6, adding the power to make warrantless arrests based on PC that "THE PERSON TO BE ARRESTED HAS COMMITTED ANY PUBLIC OFFENSE *THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES*." Without the clause in asterisks, it is clearly constitutional, and gives the police the same or a broader power to arrest. With the clause, it is arguably unconstitutional as a regulation of immigration, and has been so challenged. The only reason to put in the stuff about removal is provocation (which of course the legislature is entitled to do).
3. One of my favorite drafting errors is the three different tests for determining citizenship or immigration status in 11-1051(B), with no guidance as to when each applies. Also, 13-1509(D), dealing with sentencing, refers to other statutes dealing with calculation of felony sentences to the AZ Department of Corrections. However, Sub (H) makes clear that the offense is a misdemeanor with sentences to the county jail only. I will bet 50 cents that the Office of Legislative Counsel, which almost never makes mistakes like that, did not get to work its obsessive magic on this bill.
4. Much of SB1070 is not based on federal law, it is original to Arizona.


Posted by: Jack Chin | Jun 11, 2010 12:27:52 PM

"...generated at least as much hype" - I meant to say.

Posted by: John Rohan | Jun 11, 2010 11:22:51 AM

"Arizona's new immigration law, SB1070, is complex, vague, long, larded with drafting errors, and designed by its creators to test the limits of a dozen or more legal principles"

Long? It's only 10 pages. It's about one-half of one percent the length of the nationwide health care bill, yet it's generated at least as much .

"Larded" with drafting errors? Care to give an example?

And "designed to test the limits of a dozen or more legal principles" - since it was very carefully worded to survive the inevitable court challenges and mirrors federal law quite closely, I don't think that's a fair characterization.

Moreover, the law explicitly BANS racial profiling. It can use race, along with other factors, in a manner that has been ruled constitutional by SCOTUS. So I don't think this is a valid criticism, unless you are looking at changing the Constitution.

Posted by: John Rohan | Jun 11, 2010 11:21:42 AM

http://Immigration.Civiltalks.Com will allow you to keep the track of events. The website is highlighting the current attitude towards Arizona's immigration law. Moreover, if you have already taken a stance over this controversial issue, you can make your own contribution by sharing new facts and arguments about illegal immigration and SB 1070. Make your opinion heard – don't stand aside and let other people decide over this important issue.

Posted by: Lexo | Jun 11, 2010 8:13:52 AM

Professor Chen: Thanks for the response. I'm actually not a defender of SB 1070--I don't know enough about it either way.

I'm interpreting your post to say that you think that the Supreme Court is wrong in its interpretation of the Constitution on law enforcement's consideration of race in determining reasonable suspicion of a crime. (I'm not sure that I agree with the phrasing that race can be used as "evidence of guilt of a crime." I thought that race was allowed as a factor to determine reasonable suspicion--to me, "evidence of guilt of a crime" implies the use of race in court.)

That's a really interesting argument and I could probably be convinced that you're right on this. It's problematic for myriad reasons when the government uses race for anything. But there are countervailing considerations (those that provided the impetus for the Supreme Court's decisions on the use of race in immigration enforcement cases.)

Racial profiling sounds like a sound bite to me--and I think it ignores the complexities of the argument in a way that undermines the point you're making. The bill only allows the use of race to determine reasonable suspicion to the extent allowed by the Constitution--I don't think that racial profiling really captures this idea.

Posted by: anon | Jun 11, 2010 1:02:32 AM


I see your point, but what other term covers the idea? Is there some nice, non-politically charged way to say that these laws allow race simpliciter to be evidence of guilt of a crime?

Many defenders of the law deny that SB1070 permits consideration of race, so I appreciate your acknowledgement of the contrary. But I want to argue that this, like slavery, segregation, the Japanese American Internment, etc., were based on race, were, or were akin to, "racial profiling" even though they were constitutional (at the time).

In any event, scholars like Kevin Johnson call these cases "racial profiling" cases.

I think it is accurate.

Posted by: Jack Chin | Jun 10, 2010 5:55:57 PM

Re racial profiling: It is technically accurate to say that the SB1070 permits racial profiling (based on the definition used in the SSRN paper you link). But I also think that this is misleading.

SB1070, on my limited understanding, permits the consideration of race by law enforcement only to the extent authorized by the United States Constitution. SB1070 permits the constitutional use of race by law enforcement. Why use the charged term "racial profiling"? I don't think the debate is in any way advanced by using the term "racial profiling."

Again though, my understanding of the bill is limited, so I'd appreciate anyone correcting me.

Posted by: anon | Jun 10, 2010 4:18:26 PM

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