Arizona SB 1070: All It’s Cracked Up to Be?Posted: April 30, 2010
The Arizona immigration statute (SB 1070) discussion has generated a great deal of heat. In the end, it may produce some light as well. I won’t belabour the provisions of the statute; suffice it to say that in Arizona police officers now have statutory authority to demand proof of legal presence from people law enforcement reasonably suspects of being in the country illegally. On its face, law enforcement cannot simply require brown people to show proof of citizenship (which is what a lot of the heat centers around). Another controversial provision makes it a crime to shelter someone known to be an illegal alien.
I think that there are facial problems with the constitutionality of both of these statutes. (I think it’s obvious that these statutes will be applied in a discriminatory way, so I will leave that discussion to others.) The show-your-papers provision extends to state law enforcement the same warrantless seizure powers enjoyed by the Border Patrol under the Immigration and Nationality Act. Arizona police cannot simply go around arresting people because they are brown; they must have a reasonable suspicion that the person is in the country illegally. The reasonable suspicion burden is a pretty low one, but it is a burden. It’s the same standard as for a Terry stop: an officer must be aware of “specific and articulable facts” that would warrant a reasonable police officer in the belief that the person he or she is dealing with has committed or is about to commit a felony.
It turns out that race (or perceived race) as a basis for reasonable suspicion is that it is constitutionally impermissible. The Supreme Court closed the door on this pretty hard in United States v. Brignoni-Ponce, 422 U.S. 873 (1975). In Brignoni-Ponce, the Border Patrol stopped a car near the Mexican border in California and questioned the occupants about their legal presence. The Border Patrol officers’ stated basis for stopping the car was the fact that the occupants looked Mexican. Justice Powell wrote for the Court that the mere fact that the car’s occupants looked Mexican could not rise to the level of reasonable suspicion.
So what constitutes reasonable suspicion that someone is in the country illegally? The Border Patrol is allowed to perform warrantless searches and seizures within 100 miles of the international borders on the basis of reasonable suspicion, but they are not allowed to use race as the sole factor. SB 1070 gives this authority to Arizona law enforcement to use throughout the state (and the language of the statute is mandatory: when an officer reasonably suspects illegal presence he or she shall verify legal presence). As far as I know (and granted, I haven’t done a lot of research on this), the Supreme Court has never passed upon just how far from the border the Border Patrol (or any other law enforcement agency) can conduct plenary searches, but this might just wind up being the test case. For the most part, the justices of the Supreme Court hate bright-line rules with a passion (at least, they seem to have done since Earl Warren retired), and my understanding is that they have left the 100-mile-bulge rule to the sound discretion of Congress and Homeland Security. To the extent to which Arizona is exercising its own discretion in extending that bulge beyond the limits the federal government has determined, it’s probably unconstitutional, since Congress has the sole power to legislate in the area of immigration. But this will give the Supreme Court a chance to spell out the reach of the “border exception” and its relationship with federalism more clearly.
The other objectionable provision of SB 1070, the “alien harboring” provision, may run afoul of both the preemption doctrine (a state probably cannot make an activity based upon a federal status a crime) and the right to freedom of association read into the First Amendment (for “expressive associations”) and the Due Process Clauses (for “intimate associations” such as family). If the Court reaches the Due Process issue, this will be a chance for the Court to add to the “intimate associations” jurisprudence, which is currently a nebulous area of law.