By now, you’ve undoubtedly heard of Arizona’s racist new immigration law. President Obama has asked the Justice Department to analyze the constitutionality of the law, and some legal challenges have already been filed and others will undoubtedly follow.
Here’s the best copy of the final bill I’ve been able to find. Broken down into very basic terms, what it says is the following:
1. For any “lawful contact” made by a police officer,
2. Where “reasonable suspicion” exists that the person is an undocumented immigrant,
3. A “determination” must be made as to that person’s immigration status,
4. Except if such determination will “hinder an investigation,”
5. And the police officer may not “solely consider race, color or national origin” in making that determination.
I set this out in this brutally formalistic and almost benign way to point out that this is one of those instances where the law has been drafted to survive a constitutional challenge, using buzzwords from case law to reassure judges that everything is safely within the four corners of the Constitution. For example, “lawful contact” is legal code for the fact that in order to stop people under this law the police will have to justify it independently, i.e. that they were investigating a crime or a complaint of some kind. This is to protect the law from a Fourth Amendment search-and-seizure challenge. The same goes for “reasonable suspicion.”
(Of course, Arizona has simultaneously made it a state crime to not carry your documents with you, so that handily takes care of the whole, “they can’t just stop you in the street on suspicion of being illegal” bullshit some proponents of this bill are parroting. In other words, you can simply be apprehended on the “reasonable suspicion” that you are not carrying your documents with you, and then that provides the predicate to “determine” your immigration status.)
It’s not that there won’t be some plausible grounds for constitutional challenges. The Constitutional Law Professors’ blog notes that there will be federalism issues with any state law that seeks to regulate the federal subject-matter of immigration.
And there are probably some pretty serious Fourteenth Amendment/Equal Protection problems too – note the use of the word “solely.” i.e., as long as you can dress up your racial profiling with some other remarks (“his t-shirt had a Mexican flag on it and he spoke Spanish”), you’ll be A-OK under this law.
But I’m a bit worried that the Constitution won’t be enough here. The Supreme Court is pretty inconsistent on the rights of non-citizens – my favourite case-to-hate-on is called U.S. v. Alvarez-Machain, in which your country’s finest legal minds determined that the fact that a defendant was apprehended by international extrajudicial kidnapping (complete with helicopters IIRC) in Mexico, even in light of the U.S.-Mexico extradition treaty, did not prevent the government from trying him here.
And in any event it will take months if not years for the Court to hear the challenge. In the meantime, hundreds upon thousands of lives will be destroyed when they are apprehended under this unimaginably racist law. Sometimes I think people underestimate how disruptive the immigration system already is to undocumented workers’ lives – you spend a lot of time figuring out how to escape notice – and this will only aggravate that situation. And it’s not just the people “stealing jobs” who will be targeted by this law. As ProblemChylde points out in a post you should really read in its entirety,
… think of situations where non-citizens are family members — husbands, wives, children, cousins, parents and grandparents. The law is forcing people to choose to send them away or to keep them home. The law is driving a population of people who WANT to be citizens of this country further underground and out of the public eye, increasing the strain on public service organizations who attempt to reach these populations with assistance, and creating an impetus for other southern border states to follow its lead.
See also Professor Susurro’s notes on the concrete effects of policing of this kind:
The impact of this law is thus both legally and symbolically important to all of us. So far reports of similar policing in AZ have included issues such as:
- costing tax payers in Maricopa County $42 million in settlements for police brutality, unlawful search and seizure, and racial profiling
- leaving children on the side of the road to fend for themselves when parents are arrested
- decreased school performance and sense of safety for children
- the failure to investigate rape reports in a timely manner or, in some cases, at all to police Latin@s
- the incarceration of nursing mothers with no access to their children
- the breaking of a Chican@s’ arm while in custody for refusing to sign paperwork saying she would return to Mexico
- sexual assault of undocumented women by people either associated with or claiming to be associated with Border Patrol or border policing
- forcing Latin@ truck drivers to produce birth certificates to move products across the state (think 16 wheelers bringing your produce, the new furniture or fridge your going to buy at the big box store, etc.)
- the increase in armed theft
- the increase in petty criminality in isolated communities
- lack of safety for women, children, and families who are Latin@, interracial, indigenous, or other wise brown appearing
- increased open and publicly applauded connections to supremacy
- increased public connection between policing and racial profiling that makes everyone who “looks” brown unsafe
- the militarization and granting of state policing powers to largely untrained civilians who do not have to pass similar inspection or comply with state laws governing police conduct
- the harassment of journalists and attempted policing of news readers
Horrifying, isn’t it?
Initial suggestions as to how to act in solidarity with Arizona’s undocumented workers have ranged from a boycott of Arizona-based companies to letter-writing campaigns. Kai left a comment at Feministe also listing the following:
From what I heard on a conference call yesterday about SB 1070, hosted by RI4A, with local, state, and national organizers and advocates, right now organizers in Arizona are making “3 asks” of people outside their state: (1) hold solidarity vigils and actions in your own community, and send pictures or video to firstname.lastname@example.org; (2) escalate May Day demonstrations into a vocal protest against SB 1070; and (3) put pressure on President Obama and your Congressional representatives to seek a federal injunction against the implemenation of SB 1070 because local and state police are not authorized to enforce federal law, and to move forward on comprehensive immigration reform.
There will surely be more targeted actions and campaigns, seeking to apply economic and political pressure on key points, as peeps get some more time for research and strategic deliberation.
May 1 marches are also being organized in several locations across the country! May 1 is tomorrow, of course, but if you can please do attend one.
If any of our commenters participate in resistance and have pictures and/or video to share I’d be happy to post it here on Harpyness! Just email them to me.
I’ll have more on immigration later next week.