Arizona law is unconstitutional

This column originally appeared in the Williston Observer on July 29, 2010.

Note: this entry was written before certain provisions of the Arizona law were stayed by a federal judge.

Arizona law is unconstitutional

Two weeks ago, I wrote about the history of immigration in America, focusing on discrimination that various ethnic groups have suffered. In particular, I focused on the most recent groups to suffer, Hispanics and Latinos.

What I did not get into was the most recent issue, the state-level immigration policies that are scheduled to go into effect today in Arizona. The state law requires immigrants in Arizona to carry their immigration papers with them at all times. If a state or local law enforcement officer has a suspicion that any particular individual is an illegal immigrant, they are required to question that person about their immigration status.

The law has been excoriated by many other state and local governments, many going so far as to put official boycotts of Arizona in place, forbidding, for example, attendance at conferences held in Arizona. This is not to say that there is no support for the law. Nine states, including those as diverse as Michigan and Alabama, have officially endorsed the law in legal briefs.

According to Michigan Attorney General Mike Cox, "Arizona, Michigan and every other state have the authority to enforce immigration laws." Here, Cox is simply incorrect. Cox went on to lament that the Obama Administration was spending tax payer dollars fighting the Arizona law.

There are two major problems with this law, and they both run smack into the supreme law, the U.S. Constitution. The first is found in two parts of the original text of the Constitution, at Article 1, Section 8, Clause 4; and at Article 6.

Article 1, Section 8 is all about the powers of the federal government. The powers listed therein are not shared by the federal government and state governments. They are exclusively federal. These include the power to coin money, to establish post offices, to establish patents and copyrights, and the power to maintain an army and navy. In that list is Clause 4, which grants the power to establish a "uniform rule of Naturalization." In this context, "naturalization" is an umbrella term that includes immigration policy.

States can argue that this clause does not, actually, include immigration, but they would then have to argue against almost 200 years of established legal precedent on the matter. The ability of states to convince the Supreme Court that its precedent on this issue is incorrect seems unlikely.

Article 6 simply buttresses this argument by noting that the Constitution, and laws made under it, are the supreme law of the United States. A law passed by a state that impinges upon federal powers is no law at all.

Finally, the law violates the 14th Amendment, which guarantees all persons due process under the law. Laws cannot be applied arbitrarily and capriciously. We rely on the judgement of our police officers for many things, and I applaud and support them in the application of that judgement. But here, Arizona police officers will have to make decisions about people based on their perception of an individual. What distinguishes a legal Latino immigrant from an illegal Latino immigrant? Is there something you can see in their eyes? A change in their skin tone? A certain scent a police officer can pick up? Anything, at all, that an officer can use as an objective measuring stick?

No, there is not. Either they will have to ignore the law or they will have to consider all persons who do not have their proper papers as illegals. The casting of this wide net will undoubtedly catch illegal immigrants. But it will just as undoubtedly catch legal immigrants and even native-born citizens of the United States.

Even if immigration was not the exclusive bailiwick of the federal government, these terms of the law are enough to render it null and void. It is my sincere hope that the courts that hear the case smack this law down with the full force of Constitution and send a message to all states that such a usurpation of federal authority will not be tolerated.

If the Obama Administration should be spending tax payer dollars anywhere, it is in fighting state violations of the Constitution. We have, after all, already fought a civil war over the issue of states trying to override federal authority over powers granted to it in the Constitution. What would be a waste, morally, legally, and constitutionally, is to not fight Arizona's law.