Thursday, July 8, 2010

Some Thoughts on Arizona's Immigration Law

While some local pundits have weighed in on Arizona's crackdown on illegal immigrants (as well as some well respected constitutional scholars who might be looking at how the legal decision will play out rather than his personal opinion), I've also been keeping an ear on a more national pundit. Judge Andrew Napolitano has twice appeared on the Alan Colmes' Show (as well as several appearances on the Fox News Channel) explaining why he thinks the law is unconstitutional.

He cites a 1941 opinion Hines v. Davidowitz in which the state of Pennsylvania, in hopes of catching Nazi sympathizers, required all aliens to register with the state and carry identification. The federal government had the Alien Registration Act, and the state law was ruled based on the Supremacy Clause. The federal act didn't require aliens to carry identification. Napolitano further claims that the states, when forming the federal government, gave up any power to deal with foreign governments and foreign people.

Napolitano also says that the laws are not equal between the federal and state law. Napolitano notes that being here illegally is not a federal crime, but a U.S. Code violation. He says that you cannot be prosecuted or sent to jail for violating this section of the code, only deported. Arizona's law, however, does make it a criminal offense.

But what I found interesting was what Judge Napolitano said last night on the Alan Colmes' Show. Arizona amended their law so that only people suspected of a crime could be asked for proof of citizenship. Napolitano claims that his experience as a judge has taught him that police in New Jersey (and he presumes elsewhere) are trained to create scenarios so that suspicion of a crime may occur. He cites an example of not making eye contact during a stop for speeding, and says police officers may use the lack of eye contact as reasonable suspicion and search the vehicle. He says he has thrown out evidence in his time as a judge when presented with similar situations.

Napolitano certainly seems sympathetic to Arizona's dilemma, saying that no President of the United States since Richard Nixon has taken the issue of immigration seriously.

It also seems that at least 17 states will propose similar laws when their legislative bodies meet, but I agree with Gary Welsh that states might want to delay passing any similar laws until Arizona's case plays out in the courts.

I believe both sides of this debate seem to have some legal merit, but I also think the expansion of police powers is more disturbing, regardless of the law's constitutionality.


  1. AI allowed me to comment how I feel about Obama and this law suit, and I have not changed my mind one iota. I wonder how Napolitano feels about Holder agreeing to allow Mexico to file a brief on the side of the USA vs. Arizona.

    Knowing the background and attitude of the federal judge picked for the case, I am 99% sure that Arizona will lose.

  2. I respect your opinion, Marycatherine, and don't expect it to change. But I find it strange that Jones supports it, especially since he often seems concerned about a growing police state. Even if the law is completely constitutional, it is expanding police power (to something that, a month or so ago, they weren't even being trained in).

    This isn't a pass on the issue of immigration and the federal government, nor am I reading any motivation behind the actions of those involved (I'm giving the benefit of the doubt to both Obama's DOJ and Governor Brewer that they're acting out of genuine concern). The immigration system is incredibly broken, and isn't working (otherwise we wouldn't have all these people trying to get in). It needs to be fixed. But there are proper channels to do this, and states taking their untrained police force and deputizing them into immigration agents isn't a good solution.


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