NOTE: Pictured above is the U.S. Immigration Service Border Patrol taken in El Paso, Texas on April 21, 1927
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With the U.S Justice Department having filed a federal suit in Phoenix on Tuesday over Arizona’s new anti-immigration law, a fierce debate over illegal immigration and how much sway the federal government actually has over the states in policing its borders, will take on extra vigor in the coming weeks and months ahead.
Consequently, I’ve compiled some background on Arizona’s controversial new law, (scheduled to take effect on July 29th), along with other landmark legal opinions relating to immigration.
· On April 23, 2010, Arizona Governor Jan Brewer signed into law Senate Bill 1070, (“Support Our Law Enforcement and Safe Neighborhoods Act’’) which makes it a state crime for an alien to be in Arizona without proper documentation, while giving police the power to detain anyone residing in the state illegally.
· April 29, 2010: The Arizona Legislature approved amendments to the bill (HB 2162), which stipulates that law enforcement officials are prohibited from considering ``race, color or national origin’’ when enforcing the provisions of the original law.
· On May 17, 2010 in the U.S. District Court for the District of Arizona, a coalition of organizations including the ACLU, National Immigration Law Center and MALDEF filed a class action lawsuit against Arizona counties seeking a permanent injunction on the grounds that SB1070 violated the Supremacy Clause, the First Amendment right to freedom of speech, the Fourth Amendment right to freedom from unreasonable searches and seizures, the Equal Protection Clause guarantee of equal protection under the law, and Article II, Section 8 of the Arizona Constitution.
NOTE: The Supremacy Clause of the Constitution establishes that federal law, treaties, and the Constitution itself is “the supreme Law of the Land, which many argue, prevents states from taking actions that are otherwise within federal authority.
· As of June 30, 2010, immigration bills similar to Arizona had been introduced in five state legislatures: South Carolina, Pennsylvania, Minnesota, Rhode Island and Michigan.
· According to the National Conference of State Legislatures, three individuals (two law enforcement officials, one researcher) and the Coalition of Latino Clergy were among the first to challenge Arizona’s law based on equal protection, due process and preemption under the Supremacy Clause.
· In the first quarter of 2010, state legislators in 45 states introduced 1,180 bills and resolutions relating to immigrants and refugees involving employment, identification/driver's licenses, and law enforcement.
· An estimated 30 percent of the U.S. populations (2008 figures) live in the country without proper documentation, either through illegal immigration or overstaying nonimmigrant visas.
· January 1, 2008, The Legal Arizona Workers Act or the ``Employer Sanctions Act’’ went into effect, which among other provisions, prohibits employers from knowingly or intentionally hiring an “unauthorized alien’’ while authorizing the state court to suspend or revoke the business license of those found in violation of the Act.
· In the 1968 case of Terry v. Ohio, the U.S. Supreme Court (in an 8-to-1 decision) held that a search undertaken by a police officer was reasonable under the Fourth Amendment, on grounds that the officer acted on more than a "hunch" and the suspect was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior. Terry v Ohio was the first Supreme Court decision which recognized ``stop and frisk’’ as legitimate police tools.
· In 2000, (Ninth Circuit) in the United States v. Montero-Camargo, a case in which border patrol agents argued they had reasonable suspicion authority under the Fourth Amendment to stop the defendants near the Mexican border, a seven judge majority jury ruled that there are so many people of Mexican ancestry in the Southwest (U.S.-born citizens, naturalized citizens, documented immigrants, tourists etc) racial appearance can no longer be used to determine whether an individual is an undocumented worker. ``Stops based on race or ethnic appearance’’ Judge Reinhardt ruled `` send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone."
· In the 1941 case of Hines v. Davidowitz, the Supreme Court struck down a Pennsylvania statute requiring aliens to register with the state because it conflicted with the Federal Alien Registration Act of 1940.
· The power to set rules for which aliens may enter and remain in the United States is federal, and the regulation powers Congress created in the Immigration and Nationality Act of 1952 (INA) consequently prohibits state regulation concerning which noncitizens may enter or remain.
· In 2002, The Office of Legal Counsel (OLC)-an arm of the Department of Justice-concluded that state and local officials have ``inherent authority’’ to enforce federal immigration law, including civil enforcement provisions.
· Court cases, such as State v. Flores, Plyler v. Doe, ruled that Arizona’s criminalization of smuggling activities occurring within its jurisdiction falls within the scope of its traditional police powers, leading some to argue that that Congress’s imposition of criminal penalties upon alien smuggling was not intended to preclude states from enacting and imposing measures consistent with federal law.
· Within two years after 9/11, at least 37 states considered more than 100 bills, including immigration rights to driver’s licenses, while governors in New Mexico and Arizona declared emergencies, releasing funds for border security and charging the U.S. Department of Homeland Security with abandoning its responsibilities.
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Select cases in which the U.S. Justice Department sued the state on grounds it was usurping federal authority.
2008: The U.S. Justice Department sued the cities of Arcata and Eureka in California for executing laws banning military recruiting.
2007: The Justice Department filed suit against the State of Illinois over a state law that prohibited Illinois employers from participating the E-Verify pilot program which had been authorized by Congress.
2005: The Justice Department sued the State of Massachusetts because its Oil Spill Act imposed its own requirements on foreign and domestic vessels in Massachusetts waters, requirements which were at odds with federal laws.
2002: On behalf of the Department of Energy, the Justice Department sued the Governor of South Carolina for issuing an executive order prohibiting the transportation of plutonium on highways in South Carolina.
1965: The Justice Department asked a panel of federal judges to declare unconstitutional an Alabama law prohibiting women from serving on juries, on grounds that it violated the Equal Protection Clause of the 14th Amendment of the Constitution. The action was prompted by two recent cases in which all-white, all-male juries acquitted segregations accused of killing civil rights workers in Lowndes County.
1961: The Justice Department files a suit to prevent the segregation of bus terminals in Alexandria, La. Attorney General Robert F. Kennedy said segregation of terminals was unconstitutional because it was at odds with the Interstate Commerce Commission rules along with Federal laws.
-Bill Lucey
[email protected]
Source: Congressional Research Service, U.S. Department of Justice (Office of Public Affairs), National Conference of State Legislatures, The New York Times Historical Archives.
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Web sites to keep in mind:
U.S. Justice Department Challenges Arizona Law (Press Release)
Arizona Governor’s 1070 Executive Order
Immigration Database (From the National Conference of State Legislatures)
Immigration Law Research (Georgetown Law Library)
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