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June 26, 2012 1:05 PM The Arizona Immigration Case: Three Key Questions

By Jonathan Zasloff

Under current doctrine, the SB 1070 case came out the right way. I hate Section 2(B) – the infamous “papers, please” provision – but it isn’t unconstitutional for state officials to enforce federal law (even federal civil law, which includes immigration) and then turn offenders over to federal officials. Generally speaking, it isn’t an issue, especially in immigration contexts. Why should state and local law enforcement worry about chasing after federal civil offenders such as, say, tax evaders? And police departments are morons if they want to risk local cooperation by inquiring about immigration status. But this is Arizona.

The touchstone is that this case was a “facial” challenge, which under current doctrine means that in order to succeed, plaintiffs have to show essentially no circumstances under which the application of the law would be constitutional. I think that that standard for facial challenges is terrible, but this group of yahoos isn’t going to revisit it any time soon.

Thus, the new phase is developing an “as-applied” challenge to the law. That means answering three key questions:

1) What will the feds do when Arizona cops start presenting them with hundreds of Latinos to incarcerate? This is an important place to pin down the administration: if and when Arizona police start giving you just immigration suspects, tell them to release them.

2) What kind of monitoring, both DOJ and private, needs to be done in order to present the as-applied challenge to SB 1070?

3) What precisely will plaintiffs need to show to enjoin application of Section 2B? Arizona has something like one-third Latino population. I would guess that virtually all of the white and Indian population are citizens. (I don’t about Asians.). So if all the people turned over to the feds are Latino, is that good enough? What if it’s two-thirds? Will Arizona police need to write specific guidelines? If they don’t, is that good enough?

This battle is just beginning.

[Cross-posted at The Reality-based Community]

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.

Comments

  • DAFlinchum on July 11, 2012 4:51 PM:

    All that Arizona has to do is simply run all persons arrested regardless of race, ethnicity, etc through an immigration check. Prince William County VA has been doing this for about 5 years and has had no problems. They have handed over more than 4700 criminal illegal aliens to ICE with no case of racial profiling.

    When you combine this with the already SCOTUS-approved E-Verify check to make sure that only legal workers are working, you have a pretty powerful way for states that are serious about immigration enforcement to conduct business legally.

    Granted, the federal government can refuse to pick up any illegal aliens that it considers 'innocent' so the state must simply keep good records of all arrested illegal aliens who have to be released into the community because the federal government refused to take them into custody. Announce weekly counts of the numbers released; and as they are picked up again, hold press conferences and blister everybody from the President on down who is associated with this whole shameful refusal of the executive branch to do its job - enforce the laws.

    I suspect after a few of these shows, the federal government may see the light after it feels sufficient heat. It may take only one or two if the offense is serious enough.

  • Richard W. Firth on July 12, 2012 9:29 AM:

    Illegal immigration must stop and stop now! It is time for this country to respect and enforce the laws of this nation. It is not right nor fair for people to come here, dodge the laws, take our jobs and even kill us (25 Americans die each day at the hands of illegal aliens either in traffice accidents or acts of violence).

    Even worse it is not fair to those immigrants who came here, obeyed the law, learned our language and became citizens through a lot of financial sacrifice.

    This deliberate evasiveness in the execution of our laws is sending a very troubling message to our citizens and potential lawbreakers that it is ok to break our laws.

    This fact is most evident in the number of crimes increasing in our country and particularly by our youth.

    I cannot show my appreciation enough for all these states finally standing up to do the job our Federal government should be doing and I say "right on" to the remainder of the states leaning toward following Arizon's example. Enough is enough!

  • Dave Gorak on July 12, 2012 9:38 AM:

    I would ask Prof. Zasloff to explain what is meant by the term "Show me your papers, please." What is the origin of this phrase?

    I would also like to hear his defense of allowing 7 million illegals to keep their non-farming jobs while 20 million Americans - and legal immigrants - are not able to find full-time employment.

  • Anonymous on July 12, 2012 10:04 AM:

    When the Federal government refuses to enforce the laws of this land the States by right of their own sovereignty may protect it's own citizens against the illegal invasion of that state.
    Arizona needs to deport all illegals and tell ICE and the Department of Homeland Security their alleged assistance is not wanted in Arizona.
    If enough states stood together and seceded then the government would finally have to face the long and tortured battle for States Rights. The federal government has overstepped it's Constitutional authority and assumed rights set aside for the states and it must stop ! Secession seems to be the only solution left to bring the federal government to face reality !

  • Snarki, child of Loki on July 12, 2012 12:47 PM:

    "This deliberate evasiveness in the execution of our laws is sending a very troubling message to our citizens and potential lawbreakers that it is ok to break our laws."

    Right you are! And that is why Barclay's, Goldman Sachs, etc, etc, need to be prosecuted to the full extent of the law.

    Or does your law'n'order fetish only extend to dusky foreigners doing low-paid menial labor?

  • Anonymous on July 12, 2012 1:15 PM:

    The professor's almost incoherent and fact-free rambling does not give one much confidence in the quality of the UCLA law school. One fact he fails to mention is that Section 2(B) specifically prohibits unconstitutional racial profiling: "A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION."

  • DAFlinchum on July 12, 2012 3:38 PM:

    'Right you are! And that is why Barclay's, Goldman Sachs, etc, etc, need to be prosecuted to the full extent of the law.'

    I would love to see the federal government pursue the banksters, Snarki. Do you think it's possible that the President is pursuing unannounced 'prosecutorial discretion' for those on Wall Street who have only broken the banking and financial laws?