The governor of Arizona has signed into law a measure that would allow police to demand proof of legal residency in cases where they believe an individual might be an undocumented immigrant. The same law would also require people to carry proof of legal residency. It is unclear how the law would be enforced without racial profiling and whether or not US citizens would be subject to legal penalties if caught not carrying proof of citizenship.
The law ignores the Constitutional ban on “unreasonable search” and protecting personal documents. It also seeks to establish state-level control over an area of law that is the domain of the federal government. There is, for instance, no Arizona customs service or national border service. The border is a federal category, and immigration is controlled, by law, by various federal agencies and the jurisprudence of federal law. There is language in the law that is reportedly designed to prevent the federal government from interfering with state enforcement.
In unmistakably relevant and meaningful language, the Fourth Amendment to the United States Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The president announced before the law was even signed by Arizona’s governor that he has directed the Justice Department’s civil rights division to investigate whether or not specific provisions of the Arizona law would violate federal or Constitutional civil rights protections.
Numerous rights groups have said they plan to mount one or more legal challenges to the law. Constitutional scholars have begun to weigh in and some Arizona law enforcement officials have said they think it will place an unfair burden on police, and possibly take them outside their real scope of legal authority.
Hispanics, in particular, who were not long ago courted by the Republican Party as a swing voting bloc, railed against the law as a recipe for racial and ethnic profiling. “Governor Brewer caved to the radical fringe,” a statement by the Mexican American Legal Defense and Educational Fund said, predicting that the law would create “a spiral of pervasive fear, community distrust, increased crime and costly litigation, with nationwide repercussions.” While police demands of documents are common on subways, highways and in public places in some countries, including France, Arizona is the first state to demand that immigrants meet federal requirements to carry identity documents legitimizing their presence on American soil.
For Americans who grew up during the Cold War era, the specter of totalitarian dictatorship was often represented, even in children’s cartoons, by the scene in which policemen stop people going about their daily routines, demanding “Your papers please!” There are organizing efforts going on to stage massive protests against the law, and to pressure other states to pledge not to take such action.
The Miami Herald reports that a loose association of truckers traveling into or out of Arizona are planning to stage a trade boycott of the entire state. There is also a spreading effort, across Arizona and other states, to mount a political challenge to the Republican domination of state politics, with nearly 30% of the population of Arizona being of Hispanic descent.
NPR correspondent Ted Robbins reports that:
The things that are circumstantial are the fact that a larger than general portion of the Hispanic population in Arizona is under 18. So, of course, they can’t vote. And then there’s also a lot of folks who are in the country either legally or not legally, but they can’t vote because they’re not citizens yet. So, if you pair them away, what you have is 17 percent of eligible voters are Hispanic. That’s of the whole population. So they don’t, you can see that that halves the number of total Hispanics in the state. So the numbers belie their electoral power.
There is some question as to whether this law is taking place specifically because Republican party leaders in the state do not believe there is any substantial electoral risk from alienating the Hispanic voting population, which tends to lean Democratic to begin with. Gov. Jan Brewer (R-AZ) has sought to frame the legislation as an effort to fight back against “the murderous greed of drug cartels”, even as some fear the militant bandwagoning of prominent figures like Sen. John McCain (R-AZ), who has called for the deployment of thousands of US military personnel to the Mexican border.
The law is in some ways an expression of deep cultural paradoxes running through the rightward shift of the Republican party nationally. The anti-tax “tea party” movement has spent the better part of a year trying to oppose Pres. Obama and his agenda as a “socialist” takeover in which the government will take an egregiously authoritarian role in the private lives and economic choices of individuals, with little hint of any such possibility.
But the same militant conservatism appears to be the impetus for this law, which establishes an unprecedented right for law enforcement to involve itself in people’s daily routines, with almost no adherence to Constitutional principles of due process. That psychological conflict, inherent in the apparent radicalization of the Republican party and its public policy agenda, may ultimately be a serious problem for the party in terms of the arithmetic of general elections and of elections of national scope.
It may also allow the Democratic party to rouse an under-involved political constituency whose personal, family and community interests, not to mention a committed belief in the value of American Constitutional ideals, and motivate a wave vote against such measures. The legal challenge will likely come from three fronts.
There will likely be a federal response, at least insofar as the Justice Department will seek to instruct Arizona state and municipal law enforcement that the jurisdictional scope of this legislation is, due to Constitutional provisions, far narrower than the governor and the law’s backers would like. There will also be a civil rights response, coming from one or more prominent and community-based organizations.
And there may be a citizen-based response, in which individuals targeted by the law, or who fear they may be targeted for unequal treatment, will sue the state or law enforcement. The LA Times reports:
Obama signaled that a legal showdown might be possible and that his administration would “examine the civil rights and other implications” of the law. Department of Justice officials said they “were reviewing the bill” but declined to discuss the legislation further. Immigrant rights groups have vowed a court fight, arguing that regulating immigration is a federal matter. […] Hundreds of high school students left classes this week in protest, pouring into the plaza outside the state Capitol and urging a veto. Religious leaders and police chiefs — and thousands of callers to the governor’s office — pressed for Brewer to reject the bill. Some Arizona officials argued it would stigmatize the state much as its past refusal to honor the birthday of the Rev. Martin Luther King Jr. U.S. Rep. Raul M. Grijalva, a Democrat who represents southern Arizona, called for a convention boycott of his own state.
The measure not only sets up a serious showdown over the nature of long-standing civil rights protections, and a genuine national crisis of identity over the degree to which police action and the daily activities of citizens might be in conflict, but it also challenges the historic openness of American society.
The ideological movement behind this legislation favors sealing the southern border of the United States militarily, and the official establishment of what has been called in the past the “Fortress America” model of immigration enforcement. This confrontational model is tempting to those who believe it will bring added security, especially in communities where a rise in levels of chronic poverty or violent crime appears to be associated with the black market in human smuggling. But there is little evidence that such measures would address that problem.
The most likely practical outcome is the widespread, institutionalized harassment of individuals, even US citizens, most of whom are in no way violating any law, even up to and including immigration law. The immigrant identification law has been compared to the beginnings of apartheid, in which the status of individuals had to be officially determined and classified, ostensibly in the interests of “security”.
And while the specific provisions of the law would erode individual liberties in serious ways — allowing law enforcement to demand proof of residency at any moment, for virtually any reason, and possibly subjecting citizens and policemen to legal penalty for not collaborating — it contains no specific provisions that would directly impact the activities of violent smuggling cartels.
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Originally published April 25, 2010, at CafeSentido.com