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Why Arizona Drew a Line with New Immigration Law

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Last Friday, Gov. Jan Brewer of Arizona signed a law -- SB 1070 -- that prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes.  It also requires police officers who, in the course of a traffic stop or other law-enforcement action, come to a "reasonable suspicion" that a person is an illegal alien verify the person's immigration status with the federal government. 

Predictably, groups that favor relaxed enforcement of immigration laws insist the law is unconstitutional.  However, the arguments we've heard against it either misrepresent its text or are otherwise inaccurate, says Kris W. Kobach, a law professor at the University of Missouri at Kansas City and Attorney General John Ashcroft's chief adviser on immigration law and border security from 2001 to 2003. 

It is unfair to demand that aliens carry their documents with them: 

  • It is true that the Arizona law makes it a misdemeanor for an alien to fail to carry certain documents, but since 1940, it has been a federal crime for aliens to fail to keep such registration documents with them; the Arizona law simply adds a state penalty to what was already a federal crime.
  • Moreover, as anyone who has traveled abroad knows, other nations have similar documentation requirements.  

"Reasonable suspicion" is a meaningless term that will permit police misconduct: 

  • Over the past four decades, federal courts have issued hundreds of opinions defining those two words.
  • The Arizona law didn't invent the concept: Precedents list the factors that can contribute to reasonable suspicion; when several are combined, the "totality of circumstances" that results may create reasonable suspicion that a crime has been committed. 

The law will allow police to engage in racial profiling: 

  • Section 2 provides that a law enforcement official "may not solely consider race, color or national origin" in making any stops or determining immigration status; in addition, all normal Fourth Amendment protections against profiling will continue to apply.
  • In fact, the Arizona law actually reduces the likelihood of race-based harassment by compelling police officers to contact the federal government as soon as is practicable when they suspect a person is an illegal alien, as opposed to letting them make arrests on their own assessment. 

Source: Kris W. Kobach, "Why Arizona Drew a Line," New York Times, April 29, 2010. 

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