Last Friday Arizona Governor Jan Brewer signed an illegal immigration bill into law. The new Arizona law requires immigrants to carry alien registration documents at all times. It also requires the police to question people if there’s reason to suspect they are in the United States illegally. Governor Brewer sad:
“There’s no higher priority than protecting the citizens of Arizona. We cannot sacrifice our safety to the murderous greed of drug cartels. We cannot stand idly by as drop houses, kidnappings and violence compromise our quality of life. We cannot delay while the destruction happening south of our border — our international border — creeps its way north. We in Arizona have been more than patient waiting for Washington to act.”
President Obama called the law “misguided.” Protesters in Arizona and critics across the country are afraid that this law is going to give police license to conduct racial profiling and possibly lead to harsh crackdowns on illegal immigrants in other states.
The bottom line here is how would a law enforcement officer identify somebody who they suspect is an illegal immigrant?
The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”
The United States Supreme Court in Terry v. Ohio (1968) 392 U.S. 1 Chief Justice Warren wrote:
“No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
Justice Warren cited “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960). “The Fourth Amendment protects people, not places,” Katz v. United States, 389 U.S. 347, 351 (1967).
What Obama characterizes as “misguided” and the concern of critics of the Arizona law is whether or not application of the new law in Arizona conflicts with the Constitution of the United States.
The new law targets illegal immigrants. But how can one tell the difference between a legal and illegal immigrant?
In Terry it was argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity.
The issue directly addresses the question of just how much freedom from governmental interference does a person have in the United States? If the policeman sees a person that looks like a Mexican can he stop and detain that person to ask for his documentation? Does looks constitute probable cause to stop and detain? Does mere curiosity whether the Mexican is legal or illegal constitute probable cause?
Another overriding legal issue involved is whether or not Arizona, can pass and enforce the new law, while the state remains bound by the United States Constitution? Jurisdiction over the international border rests with the federal government, not state governments.
Then, what if the federal government fails to secure the border? Does a state have the right to secure the border because of the failure of the federal government?
These are fundamental constitutional questions which will undoubtedly wind their way up to the U.S. Supreme Court to decide.
It will be interesting to watch what the Supreme Court does with the matters in the 20th century.
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Carolene, the questions you raise are relevant and important points. I have no idea whether there is an actual count being made of illegal immigrants or if there is how is such count being carried out.
I do think that the federal government has been dilatory in acting to secure the border. For decades people from Mexico have been coming into the United States to work. US employers welcome them because it increases their profits. Consequently the federal government hasn’t concerned itself so much about the matter.
But, many of those Mexicans remained in the United States instead of returning back to Mexico. Some have married Americans while here working. Children born of those marriages are, pursuant to the Constitution, American citizens with all the rights, privileges and immunities of any other American citizen. That also means that one parent is an illegal immigrant and the other parent is an American citizen. Many of those “mixed” marriages have bought homes and frankly become Americanized.
Things floated along that way until 9/11. At that point security of the borders became paramount.
It has become a major political issue. Millions, if not billions, of dollars has been spent to build the fence along portions of the southern border. Unless that fence covers the entire southern border from the Pacific to the Gulf of Mexico it is useless, just a waste of money.
Now the picture has changed again. Drug cartels are entering the United States, seemingly at will, and kidnapping people.
It is understandable that the people of Arizona are trying to do something to get their portion of the border under some kind of control. Thus the new Arizona law is essentially a political response to the demand of Arizona citizens.
I just heard Ed Schultz on MSNBC urge President Obama to assign the National Guard to guard the border. That may be about the only way to accomplish the task. But even that would only be a partial remedy. If that kind of approach shut off the influx of illegal immigrants from Mexico, what about the purported millions of illegal immigrants already living in the United States? Does the federal government tear families apart by deporting or imprisoning the illegal immigrant parent, generally meaning the father, leaving the mother and the legal children to fend for themselves?
It also appears that armed “para-military” groups, spurred by the new Arizona law, are threatening to intervene. That is a dangerous prescription for mob violence and chaos.
We had a taste that here in Pahrump about three years ago when the then Town Board began instituting town ordinances to compel Mexicans to register with the town, that landlords be restricted from renting to them, etc. Fortunately that came to an end with the election of a new Town Board.
Even then two Mexican restaurants were burned down. Pahrump has it’s share of lawless residents willing to exercise what they perceive as their “patriotic” duty.
This is really serious. Under the Constitution the responsibility to address it rests with the federal government, which, in doing so must abide by the law of the land.
Fundamentally, as well, responsibility is upon the voters of this country to elect mature, reasonable, accountable and responsible representatives in the Senate and House to fashion the remedy.
Thank you for your thoughtful comment.
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