An analysis of the new anti-Immigrant Arizona law:
1
Preliminary Comment Draft
ARIZONA SENATE BILL 1070
LEGAL ISSUES RAISED BY
ARIZONA’S NEW STATUTE REGULATING IMMIGRATION
Gabriel J. Chin,
*
Carissa Byrne Hessick,
**
Toni Massaro,
***
and Marc L. Miller
****
May 23, 2010
Table of Contents
I. What’s New in SB 1070? 3
II. Some Basic Questions and Answers 4
III. SB 1070’s New Crimes 7
IV. SB 1070’s New Police Powers and Responsibilities 14
V. Other Provisions 24
VI. Is SB 1070 Invalidated by Federal Law? 25
*
Chester H. Smith Professor of Law, University of Arizona Rogers College of Law.
**Associate Professor of Law, Arizona State University Sandra Day O’Connor College of Law.
***Regents’ Professor, Milton O. Riepe Chair in Constitutional Law, and Dean Emerita
****Ralph W. Bilby Professor, University of Arizona Rogers College of Law
2
Introduction & Statement of Purpose
Arizona SB 1070 is an extraordinary law, and reflects an extraordinary moment in the history
of immigration law and regulation in the United States, and among the states. The bill reflects
and has provoked intense reactions by political leaders, commentators, and various communities.
The bill raises critical issues of race, security, sovereignty, civil rights, state power, and foreign
relations. Such issues encompass larger debates about modern immigration law and policy, and
are worthy of sustained public commentary and scholarly discourse.
This report serves a modest function. The impact of SB 1070 on the criminal justice system
of Arizona—the duties and powers of Arizona law enforcement and prosecutorial authorities,
and the relationship of the state legislation to federal law and policy—are being described in
commentary and in cartoons. But many descriptions have little to do with the text of the bill, or
with the policy and interpretations that are possible.
Our goal is simple: to begin to identify the central issues raised by this legislation. This is,
however, no simple task. With all respect to the views of others, in our view those who state that
the meaning of the bill is obvious, or that it simply mirrors federal law, either have not read the
bill, or do not understand the difficult issues of federalism and criminal law and procedure raised
by this text and existing law. The bill creates many new crimes and duties, some of them
previously unknown not only in Arizona but in federal or state law. To understand this bill
requires the expertise of one half of a law school faculty, since issues arise about both structural
and substantive constitutional law, immigration law, criminal law, criminal procedure, state and
local government law, and other fields. SB 1070 includes many provisions whose interpretation
is open to a range of interpretations.
This is a critical point: what this law means, including ultimate judgments about its
constitutionality, will turn on rules yet to be written, and on positions yet to be taken. Both state
actors, including the Arizona Peace Officer Standards and Training Board (AZPOST), local
police and sheriff’s departments, local prosecutors, and federal actors including the President, the
Attorney General (and any litigation or position taken by the United States Department of
Justice), the Secretary of Homeland Security, and the Secretary of State have the ability to
influence the meaning of the law, and judgments about its legality.
3
I. What’s New in SB 1070?
SB 1070
1
creates several new Arizona immigration crimes:
• Working or soliciting work by non-citizens not authorized to work under Federal
law. Arizona Revised Statutes (“A.R.S.”) § 13-2928(C).
• Hiring or being hired, if the new employee enters a car which is blocking traffic.
A.R.S. § 13-2928 (A) & (B).
• Transporting, moving, concealing harboring or shielding an undocumented noncitizen
– while the defendant commits some other crime – in order to further the
illegal presence of the non-citizen; or encouraging a non-citizen to come to
Arizona knowing that it will be in violation of law.
A.R.S. § 13-2929(A). (This statute incorporates federal criminal statutes, making
their violation an Arizona offense.)
• For any non-citizen not authorized to be in the United States, failing to carry a
federal immigration document that has been issued to the person, or failing to
register under a specific federal statute. A.R.S. § 13-1509(A), (F). (This statute
incorporates federal criminal statutes, making their violation a new Arizona
offense. This state offense has different penalties than the federal statute on which
it relies.)
SB 1070 also creates new immigration-related police powers and responsibilities.
• When lawfully stopping, detaining or arresting a person that the police have
reasonable suspicion is undocumented, the police must, when practicable, make
reasonable efforts to determine the person’s immigration status, except when it
would interfere with an investigation. A.R.S. § 11-1051(B).
• When a person is arrested, their immigration status must be determined before
they are released, by checking with the Federal government. Id.
• When a person is stopped or detained, presentation of an Arizona driver’s license
or another specified form of identification may be sufficient to show legal status
or citizenship. Id.
• When a non-citizen who is unlawfully present is discharged after conviction of an
offense, federal authorities must be notified. A.R.S. § 11-1051(C).
• Police may make a warrantless arrest for any offense that makes the arrestee
removable from the United States. A.R.S. § 13-3883(A)(5).
• State agencies may not restrict enforcement of Federal immigration law to less
than the full extent permitted by federal law. A.R.S. § 11-1051(A). This statute
is enforceable by private lawsuits.
1
The documents at issue are SB 1070, 49
th
Leg., 2d Sess., Arizona Session Laws Ch. 113,
http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2R/laws/0113.htm
as amended by HB 2162, 49
th
Leg., 2d Sess. http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.pdf
4
II. Some Basic Questions and Answers
What is racial profiling?
We define racial profiling as using race as a factor in an investigation, stop, or arrest, other than
where there is a description of a particular suspect’s race. This is a common way to define racial
profiling, though not the only way. But we think this definition accurately and usefully identifies
when race is, or is not, a critical factor in the exercise of police powers. Defining racial profiling
in this way does not answer the question of when the use of race in deciding whether to stop,
search, examine or arrest a person is legal or illegal.
Does SB 1070 authorize racial profiling?
Yes, the literal text authorizes racial profiling. But the interpretation and application of SB 1070
with regard to race remain uncertain.
Although public officials have stated that the legislation prohibits racial profiling and that
profiling is not otherwise legal, these statements are not consistent with the text of the statute or
with existing law. The law says that law enforcement officers “may not consider race, color or
national origin . . . except to the extent permitted by the United States or Arizona Constitution.”
A.R.S. 11-1051(B). Decisions by both the United States Supreme Court and the Arizona
Supreme Court have identified “ethnic factors” as a relevant consideration in enforcement of
immigration laws, and have further determined that the U.S. Constitution allows race to be
considered in immigration enforcement. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87
(1975); State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d
743 (1975).
2
As we will discuss, an equally important question is whether race would influence law
enforcement, even if the statute had stated that race may not be a factor in decisions to stop or
request information, and even if the statute is interpreted to forbid racial profiling despite its
current language. The unavoidable issue is whether race so pervades the underlying
determination of immigration status that it will inevitably infect law enforcement decisionmaking,
either explicitly or implicitly.
Does SB 1070 require racial profiling?
Again, on the text, apparently yes, but this could be limited by the application or interpretation of
the statute, and some proponents argue the answer is “no.” The statute prohibits restricting
enforcement of immigration law “to less than the full extent permitted by federal law.” A.R.S. §
11-1051(A). As explained above, federal law permits racial profiling. Under A.R.S. § 11-
1051(G), any legal resident of this state may sue an agency that violates § 1051(A). A law
2
See also Kevin Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-
Ponce and Whren v. United States and the Need For Truly Rebellious Lawyering, 98 Geo. L.J. 1005 (2010).
5
enforcement agency that declined to racially profile when enforcing federal immigration law
might be liable for enforcing the law to a degree less than is permitted by federal law.
Does SB 1070 authorize arrest or detention based on race alone?
No. However, few arrest laws or policies anywhere operate based on race alone, without regard
to other factors, such as location or conduct. Even the most explicit forms of racial profiling use
race as a factor along with other factors (for example, the Arizona Department of Public Safety
was accused of stopping motorists on the highway on the basis of race, and entered a consent
decree with the ACLU). SB 1070 allows Arizona police officers to consider race as a factor.
May Arizona police arrest or stop based on undocumented status alone?
Yes. Under existing precedent, state and local law enforcement can arrest for violation of federal
offenses. Almost all people who came here without any documentation and do not have
authorization to be here committed some criminal violation of federal immigration law, such as
entry without inspection in violation of 8 U.S.C. § 1325. Therefore, being undocumented will
often constitute probable cause for this offense. In addition, SB 1070 makes clear that an officer
can arrest for any deportable offense. A.R.S. § 13-3883(A)(5).
Are people in Arizona now required to carry identification?
Not generally. However, for decades federal law has required non-citizens to carry immigration
documents issued to them. 8 U.S.C. § 1304(e). Also, SB 1070 makes possession of acceptable
identification evidence of citizenship, A.R.S. § 11-1051(B), so it is prudent for everyone to carry
identification so status can be proven on the street rather than waiting in jail while records are
checked.
How can the police tell if someone is undocumented?
They can ask. The police need no reasonable suspicion or probable cause to ask any question of
any person, so long as officers do not create the impression that answers are required. So a
common way for the police to determine immigration status will be for them simply to ask an
individual where they were born and how they got to the United States.
Police can also evaluate the totality of the circumstances. If a person does not admit to being
undocumented, law enforcement may still determine immigration status based on assessment of
the facts and circumstances. Relevant considerations include apparent race, clothing, language
used and accent, the location of the encounter, origin and destination of travel, and behavior of
the individuals, such as whether they are nervous or angry.
6
What is the purpose of making state crimes based on violations of federal law?
Disagreement with federal immigration policy. Arizona police already have power to arrest for
federal immigration crimes. Ordinarily, there is a tremendous advantage in handing over federal
offenders to the federal government: The United States assumes the cost of prosecution and
incarceration. However, for various reasons, the federal government prosecutes only a fraction
of low level immigration offenders, just as it prosecutes only a fraction of, say, tax offenders.
The new law gives Arizona the ability to prosecute based on violations of federal law that the
federal government itself would decline to prosecute.
Does SB 1070 Simply Replicate and Enforce Federal Immigration Law?
No. SB 1070 does not simply mandate the enforcement of federal criminal and civil immigration
laws. It creates new state crimes with different elements than similar federal crimes, it creates
mandatory penalties that are different than the discretionary penalties in the federal statute, and it
appear to remove the policing and prosecutorial discretion which is inherent in federal
immigration enforcement.
Any mandatory directive to state law enforcement to enforce federal law would transfer
discretion in federal immigration enforcement from federal actors to the state. While a shift in
the balance of power between federal and state actors when enforcing federal law might raise
issues of preemption, the preemption concerns, discussed later in this memorandum, are
heightened by the creation of distinct state crimes and penalties aimed at the same or similar
underlying act as the federal immigration provisions.
*****
7
III. SB 1070’s New Crimes
We explore the meaning of the new law below with two background principles in mind.
First, Arizona courts construe statutes, where reasonably possible, to avoid constitutional
questions.
3
Second, under the rule of lenity, ambiguous statutes are construed favorably to the
defendant.
4
A. A.R.S. § 13-1509: “Willful Failure to Complete or Carry an Alien Registration
Document.”
1. Elements of the Offense and Penalty
The Act creates a new state crime of “Willful failure to complete or carry an alien
registration document.”
5
A person is guilty if she does not “maintain authorization from the
federal government to remain in the United States”
6
and is “in violation of 8 United States Code
1304(e) or 1306(a).”
7
These sections of federal law are part of the Alien Registration Act of
1940, which requires registration within 30 days of arrival of non-citizens who: 1) are 14 or
older; 2) did not enter under immigrant or non-immigrant visas issued under 8 U.S.C. § 1201(b);
and 3) remain in the United States for 30 days or longer.
8
Section 1304(e) requires those issued
an immigration document by the Federal government to carry it; noncompliance is a
misdemeanor punishable by 30 days in jail, a $100 fine, or both. Section 1306(a) provides that a
person required to register who “willfully fails or refuses to make such application” is guilty of a
misdemeanor punishable by 6 months in jail, a $1,000 fine, or both.
To be convicted under the new state statute a person must not be authorized by the
federal government to be in the United States; that is, it is inapplicable to those who entered with
valid visas or other legal grounds to remain in the United States. The defendant’s status may be
determined by “a law enforcement officer who is authorized by the federal government to verify
or ascertain an alien’s immigration status.”
9
This probably refers to the 287(g) program
10
under
which state and local officers are trained and authorized to enforce federal immigration law.
3
State v. Gomez, 127 P.3d 873, 878 (Ariz. 2006) (“We . . . construe statutes, when possible, to avoid constitutional
difficulties.”)
4
State v. Tarango, 914 P.2d 1300, 1302 (Ariz. 1996) (“When a statute is ‘susceptible to more than one
interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the defendant.’ State v. Pena,
140 Ariz. 545, 549-50, 683 P.2d 744, 748-49 (App. 1983) (decision approved and adopted in State v. Pena, 140
Ariz. 544, 683 P.2d 743 (1984))”). Notably, the Arizona legislature appears to have attempted to abrogate the rule of
lenity, see A.R.S. §§ 1-211(C), 13-104, however, state courts continue to apply the rule, see Cawley v. Arizona Bd.
of Pardons and Paroles, 145 Ariz. 387, 388 n.1 (Ariz. App. 1984) (“We note that §§ 13-104 and 1-211(C) abolish
the general rule of strict construction for penal statutes. However, Arizona decisions continue to apply the rule of
lenity.”).
5
SB 1070 §3, A.R.S. § 13-1509.
6
A.R.S. § 13-1509(F).
7
A.R.S. § 13-1509(A).
8
8 U.S.C. § 1302(a). Parents are required to register those less than 14. 8 U.S.C. § 1302(b). When a person
required to register turns 14, he or she must register under § 1302(a).
9
A.R.S. § 13-1509(B)(1).
10
8 U.S.C. § 1357(g).
8
Status may also be determined by federal authorities “pursuant to 8 United States Code 1373(c)”,
which allows the Immigration and Naturalization Service (and therefore its successor agencies)
to share “citizenship or immigration status of any individual within the jurisdiction of the agency
for any purpose authorized by law.”
Incarceration under the new Arizona state statute is mandatory upon conviction.
11
The
crime is a Class 1 misdemeanor, punishable by up to 20 days in jail and a $100 fine for a first
offense,
12
and 30 days for a second offense.
13
The Federal penalties for violation of the federal
provisions are different. Section 1304(e) provides for punishment of up to 30 days in jail and a
$100 fine. Section 1306(a) provides for punishment by up to 6 months incarceration and a
$1,000 fine.
2. Issues.
While probably not the intention of the legislature this statute has extremely limited
application because it is tied to federal statutes which are difficult to violate. This statute is not
violated simply because the defendant is undocumented or removable; the defendant also must
be “in violation” of one of two specific federal statutes 8 U.S.C. § 1304(e) or § 1306(a).
Failure to Carry Documents in violation of § 1304(e). It is likely that few intended
defendants will have violated § 1304(e), failure to carry an immigrant document issued by the
United States: Most will never have been issued an immigration document, so they are not
covered. SB 1070 targets “the unlawful entry and presence” of non-citizens, according to
Section 1. Also, we are unaware of any cases involving a conviction under § 1304(e) for failing
to carry an expired or invalid immigration document. If § 1304(e) does not require carrying
expired or invalid documents, then § 13-1509 can never be the basis for prosecution of someone
who was lawfully admitted. People lawfully admitted on a visa are not required to register under
§ 1306(a)(2). If a person later lost her right to live in the United States, and there is no duty to
carry expired or invalid documents, then she cannot have violated § 1304(e). If the person fails
to carry valid documents while remaining authorized to live in the United States, he or she
cannot be prosecuted because A.R.S. § 13-1509(F) limits the statute to those who are not
authorized to live in the country.
Failure to Register in Violation of § 1306(a).
-- Duty to Register. For people who never entered lawfully, there are substantial
impediments to proof of liability under § 1306(a). First, conviction requires proof of when the
person entered. If the person has been in the United States for less than 30 days, there is no duty
to register.
14
On the other hand, if the person has been in the United States for more than five
years and thirty days, the statute of limitations will likely have expired.
15
In such a case, there is
an argument that the person is no longer “in violation” of § 1306(a), as required by the statute.
11
A.R.S. § 13-1509(D) (“A person who is sentenced to this section is not eligible for suspension of sentence,
probation, pardon, commutation of sentence or release from confinement on any basis . . .”).
12
A.R.S. § 13-1509(H).
13
A.R.S. § 13-1509(H).
14
8 U.S.C. § 1302(a)(3).
15
18 U.S.C. § 3282(a).
9
For the State of Arizona to prosecute a violation of Federal law which Congress has deemed
unenforceable may raise a preemption question, which is discussed below in Section VI.
-- Mens Rea. Prosecution predicated on failure to register will be extremely difficult for
another reason. In general ignorance of the law is no excuse, that is, even if you do not know
that possessing a hand grenade or heroin is illegal, you may still be liable for doing so. In some
areas of complex regulation, such as tax, legislatures change the rule, and impose liability only
for “willful” violations, that is, those based on a “voluntary, intentional violation of a known
legal duty.”
16
This principle, usually applied to regulatory, technical laws, protects people from
being convicted of a crime unless they specifically intended to act contrary to law.
The Supreme Court has explained that § 1306(a) requires wilfullness. In Hines v.
Davidowitz,
17
the Court held that a Pennsylvania alien registration law was invalid because it
conflicted with a federal law. The Court noted that “under the federal Act aliens . . . can only be
punished for wilful failure to register.”
18
“That the Congressional decision to punish only wilful
transgressions was deliberate rather than inadvertent is conclusively demonstrated by the debates
on the bill.”
19
The debates included statements such as that by Senator Richard Russell: “This
provision says ‘wilfully refuses.’ We would not punish for willfully refusing a man who did not
file any application because he did not know about the necessity of doing it.”
20
Accordingly,
violation of § 1306(a), and therefore conviction under A.R.S. § 13-1509, requires proof beyond a
reasonable doubt that the defendant knew of the duty to register.
In a prolonged discussion after SB 1070 was passed, no member of the immigration law
professor’s listserv was able to identify a specific government form
21
or other mechanism for
registration under § 1306(a). Accordingly, either there is no way to register and the program is
defunct, or it the program is so obscure that even specialists do not know how it works. Under
those circumstances, almost all potential defendants will have a valid claim that they did not
know of the duty to register, and thus did not “willfully” fail to do so.
The government’s own behavior has almost certainly suppressed registration.
22
Since
most people subject to § 1306(a) entered without inspection, and many do not have high levels of
formal education, it is unlikely that many either know about the duty to register or try to register.
Given both widespread non-compliance, and the availability of other grounds for removal
whenever such people are encountered, the government has little reason to publicize the
registration requirement or to develop and distribute registration forms. But if the government
makes it practically impossible to register, and fails to publicize the process, it becomes ever
16
Cheek v. United States, 498 U.S. 192, 201 (1991).
17
312 U.S. 52 (1941).
18
Id. at
19
Id. at
20
86 CONG. REC. 8344 (June 15, 1940).
21
U.S. Citizenship and Immigration Services forms are available here: http://www.uscis.gov/portal/site/uscis
22
It is similar, in this context, to the alien change of address requirements of federal law. As the GAO reported in
2002, “Some aliens may be unaware that they need to file a change of address form and do not comply. This may be
understandable given that he INS does not publicize the change of address requirement.” U.S. GENERAL
ACCOUNTING OFFICE, HOMELAND SECURITY: INS CANNOT LOCATE MANY ALIENS BECAUSE IT LACKS RELIABLE
ADDRESS INFORMATION 3 (GAO-03-188 2002) http://www.gao.gov/new.items/d03188.pdf The report notes that
the “INS has not made the Form AR-11 available at post offices as required by the Code of Federal Regulations.” Id.
at 16-17.
10
more likely that even individuals who would be willing to obey the law will never know of their
duty to register.
--Self-Incrimination. This section also potentially raises a self-incrimination issue. In
general, a requirement to file a report or record, incident to a civil regulatory regime, such as a
tax return, does not violate the privilege against self-incrimination of the Fifth Amendment.
However, the Supreme Court has held that reporting requirements focused on criminal conduct
do violate the privilege. Thus, the Supreme Court has invalidated a special registration and
reporting statute focused on illegal gamblers,
23
and a tax on marijuana dealers.
24
Of course,
people can still be prosecuted for underlying crimes, but not for failing to confess the crimes to
the government.
A.R.S. § 13-1509 arguably has a similar flaw. Non-citizens are protected by the privilege
against self-incrimination.
25
8 U.S.C. § 1306(a) and similar statutes have been upheld, in
general, because they are for purposes of civil regulation, rather than being intended to catch
criminals.
26
By contrast, the Arizona statute applies only to those who are here unlawfully; those
who fail to carry their documents or have failed to register, but are allowed by the United States
to be here, are not covered. Because the law applies exclusively to those unlawfully present,
registration would require admission of a crime. It may be that under the United States or
Arizona
27
constitution, courts will conclude that this amounts to compelled self-incrimination
and thus is invalid.
B. A.R.S. § 13-2928: Work and Hiring.
1. Elements of the Offense and Penalty
This new section of Arizona Revised Statutes creates a crime of impeding traffic in order
to hire an individual for work or if being hired for work. The law applies only when motor
vehicles are “stopped on a street, roadway or highway” and when the vehicles are blocking or
impeding “the normal movement of traffic.”
28
An existing statute prohibits driving “a motor vehicle at such a slow speed as to impede
or block the normal and reasonable movement of traffic”
29
and permits law enforcement officers
to issue citations for the violation of that statute.
30
Section 13-2928 differs from this existing
statute in two important respects: First, it applies when a motor vehicle is impeding or blocking
23
Marchetti v. United States, 390 U.S. 39 (1969); Grosso v. United States; 390 U.S. 62 (1968).
24
Leary v. United States, 395 U.S. 6 (1969).
25
Plyler v. Doe, 457 U.S. 202 (1982); United States v. Rodriguez-Rodriguez, 441 F.3d 767 (9
th
Cir. 2006).
26
Rajah v. Mukasey, 544 F.3d 427, 443 (2d Cir. 2008) (“The statements required under the Program were merely a
condition on the continued receipt of the government benefit of being allowed to remain in this country”); United
States v. Sacco, 428 F.2d 264, 271 (9
th
Cir. 1970) (“The defendant makes no effort to explain in what way
complying with any of those statutes would have tended to incriminate him.”)
27
Az. Const., Art. 2, § 10.
28
A.R.S. § 13-2928(A), (B).
29
A.R.S. § 28-704(A).
30
Op. Atty. Gen. No. 62-17-L.
11
traffic for a particular purpose — the hiring of an individual to be transported to another location
for work — and second, violation of the statute is a Class 1 misdemeanor.
31
The section also
prohibits any person who is in the United States unlawfully from applying for work, soliciting
work in a public place, or performing work either as an employee or independent contractor.
32
2. Issues
As a general matter, the state may enact legislation to minimize traffic congestion.
However, state legislation that imposes criminal sanctions for the hiring of undocumented aliens
is preempted by the federal Immigration Reform and Control Act of 1986 (“IRCA”).
33
IRCA
explicitly preempts “any State or local law imposing civil or criminal sanctions (other than
through licensing and similar laws) upon those who employ, or recruit or refer for a fee for
employment, unauthorized aliens.”
34
Section 13-2928 unquestionably imposes a criminal sanction — a Class 1 misdemeanor is
punishable by up to six months imprisonment.
35
And § 13-2928(A), which punishes any
“occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or
hire and pick up passengers for work at a different location if the motor vehicle blocks or
impedes the normal movement of traffic,” is targeted at immigration.
Although the provision does not specifically mention immigration, courts are likely to
interpret it that way because courts interpret legislation “against the background of the legislative
history . . . and the historical context from which the Act arose.”
36
Section 13-2928 was one
portion of a bill designed to address illegal immigration. Indeed, subsection (C) of this section
— the section that prohibits any person who is in the United States unlawfully from applying for
work, soliciting work in a public place, or performing work — clearly indicates that this section
was created in response to the perception that undocumented aliens solicit and obtain day laborer
positions from residents who pick them up from street corners.
C. A.R.S. § 13-2929: Transporting Aliens While Committing Another Crime
1. Elements of the Offense and Penalty
This new section of Arizona Revised Statutes, borrowed from federal law, creates an
Arizona crime with several distinct requirements. First, the law applies when a person “is in
violation of a criminal offense”
37
other than § 13-2929. Second, the person must transport,
31
A.R.S. § 13-2928(D).
32
A.R.S. § 13-2928(C).
33
8 U.S.C. §§ 1324a-1324b.
34
8 U.S.C. § 1324a(h)(2). The Ninth Circuit recently held that other Arizona legislation designed to discourage the
employment of undocumented aliens was not preempted by IRCA, Chicanos Por La Causa, Inc. v. Napolitano, 558
F.3d 856 (9th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009) (No. 09-115), however that
legislation regulated employer conduct through suspension or revocation of state licenses—the explicit exemption
including in the IRCA provision. Id. at 862.
35
A.R.S. § 13-707(A)(1).
36
United Steelworkers of America v. Weber, 443 U.S. 193, 201 (1979).
37
A.R.S. § 13-2929(A).
12
move,
38
harbor, conceal or shield non-citizens,
39
or encourage or induce their entry into
Arizona.
40
Third, the defendant must know or recklessly disregard the fact that the non-citizens
have come to, entered or remained in the United States in violation of law, and act in furtherance
of. Thus, the core misconduct these statutes are aimed at punishing is associated with smuggling:
Transporting non-citizens across the border, or from the border to the interior of the United
States, hiding them along the way, and helping them evade law enforcement (or, perhaps,
concealing them from law enforcement officers who would free them from compelled labor).
The “in violation of a criminal offense” section of the statute contemplates that the smuggling
will be discovered while enforcing some other provision of law, such as a traffic crime.
41
Violation is a Class 1 Misdemeanor, but an offense involving 10 or more undocumented
non-citizens is a Class 6 Felony.
42
The potential penalties for the federal versions of the offenses
are much higher—up to 5 years imprisonment, or more if there are certain aggravating factors.
43
2. Issues
-- “In Violation” While the core purpose is clear enough, several interpretive puzzles
remain. One question is the full contours of when a person “is in violation of a criminal
offense.” A Westlaw search suggests that this phrase is not used in any other state or federal
statute now in force, so its meaning is a matter of speculation. It seems to apply to a person who,
at the time of transporting, harboring or encouraging an undocumented alien, is also committing
a crime, for example, a person transporting undocumented people across the border while going
20 miles an hour or more over the speed limit.
44
However, a person transporting undocumented
non-citizens who violated a mere civil traffic rule
45
would not seem to be “in violation of a
criminal offense” and therefore would not be liable under the statute.
Some crimes are deemed “continuing offenses” that exist not only from the point when
every element has occurred, but until the offense stops. Kidnapping is a continuing offense,
which ends only when the victim is released.
46
Failure to register as a sex offender is another
example.
47
Perhaps if an individual committed a “continuing offense” which has not yet
terminated, they may be liable under the statute if they transport or harbor non-citizens.
It would also be possible to argue that someone who violated a criminal statute in the
past, say, failure to file an income tax return, when the statute of limitations has not expired, and
38
A.R.S. § 13-2929(A)(1), based on 8 U.S.C. § 1324(a)(1)(A)(ii).
39
A.R.S. § 13-2929(A)(2), based on 8 U.S.C. § 1324(a)(1)(A)(iii).
40
A.R.S. § 13-2929(A)(3), based on 8 U.S.C. § 1324(a)(1)(A)(iv).
41
The legislature’s concern with non-citizens in vehicles is supported by Section 4 of SB 1070, which adds a rather
incongruous section to Arizona’s human smuggling law: “in the enforcement of this section, a peace officer may
lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the
person is in violation of any civil traffic law.” A.R.S. § 13-2319(E).
42
A.R.S. § 13-2929(D).
43
8 U.S.C. § 1324(a)(1)(B).
44
A.R.S. § 28-701.02(A)(2).
45
A.R.S. § 28-1521 (“A person who violates a provision of chapter 3 of this title or this chapter is subject to a civil
penalty unless the statute defining the offense provides for a criminal classification.”)
46
State v. Jones, 916 P.2d 1119 (Ariz. Ct. App. 1995).
47
State v. Helmer, 53 P.3d 1153 (Ariz. Ct. App. 2002).
13
the case has not otherwise been resolved, is “in violation” of a criminal offense. Of course, this
would make liability very broad, and is a doubtful construction given the rule of lenity.
48
--Relationship to Federal Law. Another difficulty is the precise relationship of the
Arizona enactments to Federal law. Like § 13-1509, § 13-2929 draws from several federal
statutes. Unlike § 13-1509, § 13-2929 does not simply cite to the relevant federal immigration
statutes, it recapitulates them in text with slightly different wording. Therefore, violation of § 13-
2929 does not require a violation of federal law, it requires violation of Arizona laws that are
textually similar to federal laws.
This creates an interpretive puzzle: Did the legislature intend to create new Arizona
transporting and concealing enactments with their own, distinct meaning, which might be
implied based on the difference in language and the difference from the structure of § 13-1509?
49
Or did the legislature intend to adopt the federal laws and their associated federal caselaw, but
for purposes of clarity or simplicity did so without copying the statutes in their entirety?
50
Conceivably, it is the latter; the federal statutes used terms which could not be imported without
modification; the Federal statutes applied to the whole United States, for example, while Arizona
laws can apply only in Arizona. On the other hand, Arizona’s law is one of four in the United
States that criminalize the transportation of illegal aliens. Oklahoma,
51
South Carolina
52
and
Utah
53
also have statutes; none are identical in coverage, in the exceptions provided, or in the
penalties provided. Accordingly, it may be that these laws mark the beginning of a network of
customized local regulations of the same area across the nation.
--Inconsistency of Federal Precedents. Assuming that Federal caselaw is relevant, it
leaves open many questions. These statutes are among the murkiest and most unsettled in the
U.S. Code. Different circuits follow a variety of different tests.
54
Nevertheless, some generalizations may be possible.
55
As the Fifth Circuit explained,
“Willful transportation of illegal aliens is not, per se, a violation of the statute, for the law
proscribes such conduct only when it is in furtherance of the alien’s unlawful presence.”
56
So not
48
See supra note 4.
49
State v. Kelly, 112 P.3d 682, 684 (Ariz. Ct. App. 2005) (“We generally presume that when the legislature amends
the language of a statutory provision, it intended that the change have meaning. See State v. Garza Rodriguez, 164
Ariz. 107, 791 P.2d 633 (1990).”).
50
Wylie v. Douglas Lumber Co., 8 P.2d 256, 258 (Ariz. 1932) (“While it is not verbatim the statute of California
(section 1186, Kerr’s Code Civ. Proc. 1920), we take it that it was probably borrowed from California and has the
same meaning.”)
51
21 Okl. St. Ann. § 446.
52
South Carolina Code 1976 § 16-9-460.
53
U.C.A. 1953 § 76-10-2901.
54
United States. v. Barajas-Chavez, 162 F.3d 1285, 1288-89 (10
th
Cir. 1999) (en banc) (holding long-distance
transportation to a new job is “in furtherance of” illegal presence, and describing tests of various circuits).
55
See generally, Annot., William G. Phelps, Validity, construction, and application of § 274(a)(1)(A)(ii) of
Immigration and Nationality Act (8 U.S.C.A. § 1324(a)(1)(A)(ii)), making it unlawful to transport alien who has
entered United States in violation of law, 133 A.L.R. Fed. 139.
56
United States v. Merkt, 764 F.2d 266, 271-72 (5th Cir. 1985); United States v. Hernandez-Franco, 189 F.3d 1151,
1155 (9th Cir.1999) (“[A] conviction under this section requires more than just the defendant's knowledge or
reckless disregard of the fact that the alien transported was illegally present in the United States: the Government
must also prove that the defendant “‘intended to further the alien’s illegal presence in the United States.’ ”) (quoting
United States v. Barajas-Montiel, 185 F.3d 947, 954 (9th Cir.1999)).
14
all transportation or “harboring” in the sense of, say, employing or housing, violates the federal
statutes in the absence of an additional intent to violate or frustrate federal law.
Ordinary arms-length transactions by non-employers may be excluded. For example, the
Seventh Circuit said that taken literally, federal law:
could conceivably criminalize the actions of a cab driver who transports in a routine
commercial transaction an individual who announces his illegal alien status during the
course of the ride. We do not read section 1324(a)(1)(B) as enacting such sweeping
liability. Relevant considerations bearing on this issue include whether the defendant
received compensation for his transportation activity, whether the defendant took
precautionary efforts to conceal the illegal aliens, and whether the illegal aliens were the
defendant’s friends or co-workers or merely human cargo.
57
Most cases involve smugglers, rather than social friends or family members of the
undocumented people. In United States v. Moreno,
58
the Ninth Circuit held that a foreman who
transported non-citizens “as part of the ordinary and required course of his employment as
foreman” was not liable because “[i]t was too attenuated to come within the boundaries” of the
law. The court explained:
A broader interpretation of the transportation section would render the qualification
placed there by Congress a nullity. To do this would potentially have tragic consequences
for many American citizens who come into daily contact with undocumented aliens and
who, with no evil or criminal intent, intermingle with them socially or otherwise. It could
only exacerbate the plight of these aliens and, without adding anything significant to
solving the problem, create, in effect judicially, a new crime and a new class of criminals.
All of our freedom and dignity as people would be so reduced.
59
That being said, another appellate case holds that transporting undocumented people to
and from work can constitute a violation.
60
In any event, even family members or friends who
lie to the police or take other affirmative steps to prevent the detection of an undocumented
person will be liable.
IV. SB 1070’s New Police Powers and Responsibilities
A. A.R.S. § 13-3883(5): Arrest for Any Removable Offense
This section allows peace officers to arrest without a warrant based on probable cause if
“The person to be arrested has committed any public offense that makes the person removable
from the United States.” Although clearly aimed at expanding state arrest authority, it may be
57
United States v. Parmelee, 42 F.3d 387, 391 (7
th
Cir. 1994).
58
561 F.2d 1321 (9
th
Cir. 1977).
59
Id. at 1323. See also United States v. 1982 Ford Pick-Up, VIN 1FTDX15G7CKA31957, Texas Lic. No. VM5394
873 F.2d 947 (6
th
Cir. 1989) (transportation for work insufficient);United States v. Moreno-Duque, 718 F. Supp. 254
(D. Vt. 1989).
60
United States v. One 1982 Chevrolet Crew-Cab, 810 F.2d 178 (8
th
Cir. 1987).
15
redundant. The U.S. Court of Appeals for the Ninth Circuit,
61
among other authorities,
62
holds
that local police have inherent authority to arrest for federal crimes, including immigration
misdemeanors. For its part, the Arizona Supreme Court held in 1954 that state peace officers
may make arrests for federal crimes under their general arrest authority.
63
The section also apparently addresses the need for an arrest warrant. The U.S.
Constitution requires the use of an arrest warrant when law enforcement officers make arrests in
homes and some other private places. This statute confirms, however, that Arizona law places
no additional warrant requirement on officers when they arrest a person for removable offenses.
B. What Constitutes Reasonable Suspicion that a Person is Undocumented?
One of the most challenging questions under SB 1070 is what the statute authorizes as a
basis for reasonable suspicion “investigatory” stops, and reasonable suspicion searches (or
“frisks”), such as inquiries about nationality and identification documents. Section 11-1051(b) of
SB 1070, as modified by HB 2162(b), provides:
For any lawful stop, detention or arrest made by a law enforcement official or a law
enforcement agency of this state or a law enforcement official or a law enforcement
agency of a county, city, town or other political subdivision of this state in the
enforcement of any other law or ordinance of country, city or town or this state where
reasonable suspicion exists that the person is an alien and is unlawfully present in the
United States, a reasonable attempt shall be made, when practicable, to determine the
immigration status of the person, except if the determination may hinder or obstruct an
investigation. Any person who is arrested shall have the person’s immigration status
determined before the person is released. The person’s immigration status shall be
verified with the federal government pursuant to 8 United States code section 1373(c). 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. A person is presumed to not be an alien who is unlawfully present
in the United States if the person provides to the law enforcement officer or agency any
of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
61
Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir.1983) (federal law allows local police to arrest for criminal
provisions of the Immigration and Naturalization Act), overruled on other grounds by Hodgers-Durgin v. De La
Vina, 199 F.3d 1037 (9th Cir.1999).
62
Assistance by State and Local Police in Apprehending Illegal Aliens, U.S. Department of Justice, Office of Legal
Counsel (Feb. 5, 1996) (http://www.justice.gov/olc/immstopo1a.htm).
63
Whitlock v. Boyer, 271 P.2d 484, 487 (Ariz. 1954) (noting that New York police officers make arrests for federal
felonies and misdemeanors; “[w]e think this practice states the general rule and we approve of it for Arizona.”)
(citing Marsh v. United States. 29 F.2d 172, 173 (2d Cir. 1928) (L. Hand J., joined by Swan and A. Hand JJ.).
16
4. If the entity requires proof of legal presence in the United States before
issuance, any valid United States federal, state or local government issued
identification.
Rarely in the annals of often mystical criminal justice provisions has anything quite so
cryptic been produced. A quick reader of the statute might assert that the provision simply directs
law enforcement officers, when otherwise enforcing criminal or civil laws, to inquire about
immigration status where they reasonably suspect that a person might be an illegal alien. The
final portion could be seen as an ID “safe harbor,” but not as a requirement that people carry any
kind of identification document.
Broader readings of the powers and duties of police officers under this statute are also
possible. The more expansive reading starts with the observation that police officers have
always been able to make voluntary (consensual) inquiries of anyone—about nationality,
immigration status, reason for being in a particular location, or pretty much anything else. Police
also have the authority to make such voluntary inquiries during stops or detentions justified on
some other basis, such as a traffic stop, or the detention of residents of a home or business during
the execution of a search warrant.
64
Section 11-1051 may be read to require police officers in
Arizona to voluntarily inquire about immigration status when they have a reasonable suspicion
that someone is not a legal resident, even if they do not have power to stop that person.
The limitation of the duties to situations involving a “lawful stop, detention or arrest” and
the distinct requirement that officers not release anyone who has been arrested without
determining their immigration status may suggest that there is not a similar regularized
obligation to do so during voluntary interactions. But this narrower interpretation attaches
meaning to silence in the statute – that is, the absence of an explicit clause dealing with
consensual encounters. Legal arguments based on silence are notoriously uncertain. (Another
legal issue: after SB 1070, will citations in lieu of arrest, or so-called “catch and release” statutes,
be deemed to trigger the mandatory “must inquire before release” provisions associated with
arrests?)
Among the most controversial aspects of the SB 1070 (as modified) is the question of
whether it allows, encourages, or forbids racial profiling in making decisions whether to stop,
search, or inquire about a person’s nationality and immigration status. Arizona Governor Jan
Brewer has stated that it is “crystal clear and undeniable that racial profiling is illegal, and will
not be tolerated in Arizona.”
65
The author of SB 1070, Arizona State Senator Russell Pearce, has
written that SB 1070 “explicitly prohibits racial profiling.”
66
However, these statements do not fit with the text of the statute, or with the text of the
Executive Order signed by Governor Brewer on the same day she signed SB 1070.
67
The
original text of SB 1070 stated:
64
Muehler v. Mena, 544 U.S. 93 (2005) (affirming questioning about immigration status of person held during
execution of a home search warrant).
65
Statement, April 30, 2010 (signing HB 2162, amending SB 1070).
66
Russell Pearce, “Arizona or San Francisco: Which Path Will America Take on Immigration?,” May 12, 2010
(www.townhall.com).
67
Exec. Order 2010-09 (April 23, 2010).
17
A law enforcement official or agency of this state or a county, city, town or other political
subdivision of this state may not solely 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.
As revised by HB 2162, the relevant legislative language now states:
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.
What changed? The revised version deletes the term “solely” which originally appeared
before “consider.” But removing “solely” may expand rather than contract the use of race in
making determinations whether to stop or inquire under the statute. If the purpose of amending
the original text of SB 1070 in HB 2162 was to prohibit the consideration of race as part of
determinations whether to stop or inquire about nationality or immigration status, then the
revised language should have eliminated the final clause, which suggests that race may be
considered “to the extent permitted by the United States or Arizona Constitution.” Governor
Brewer’s Executive Order simply repeats this language.
There’s the rub. According to the Supreme Court, the U.S. Constitution allows race to be
considered in immigration enforcement: “The likelihood that any given person of Mexican
ancestry is an alien is high enough to make Mexican appearance a relevant factor.”
68
The
Arizona Supreme Court agrees that “enforcement of immigration laws often involves a relevant
consideration of ethnic factors.”
69
In 1996, the Arizona Supreme Court reaffirmed the relevance
of race in determinations of reasonable suspicion:
Mexican ancestry alone, that is, Hispanic appearance, is not enough to establish
reasonable cause, but if the occupants’ dress or hair style are associated with people
currently living in Mexico, such characteristics may be sufficient. The driver's behavior
may be considered if the driving is erratic or the driver exhibits an “obvious attempt to
evade officers.” The type or load of the vehicle may also create a reasonable suspicion.
70
Federal and state courts generally recognize that apparent race can be part of a reasonable
suspicion calculus for an investigate stop. In United States v. 1982 Ford Pick-Up, VIN
1FTDX15G7CKA31957, Texas Lic. No. VM-5394, the United States Court of Appeals for the
Sixth Circuit, in a case arising out of Louisville, Kentucky, affirmed a stop based on reasonable
suspicion of willfully transporting and illegal alien where
all the individuals appeared to be of Hispanic origin, that none of the men or women
spoke English, but that each individual spoke Spanish with a recognizable Salvadoran
68
United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975); See also, e.g., United States v. Hernandez-Moya,
335 Fed. Appx. 930 (5
th
Cir. 2009) (unpublished) (reaffirming relevance of race in affirming roving border patrol
stop). See generally Kevin Johnson, How Racial Profiling in America Became the Law of the Land: United States v.
Brignoni-Ponce and Whren v. United States and the Need For Truly Rebellious Lawyering, 98 GEO. L.J. 1005
(2010).
69
State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) (citing State v. Becerra, 534 P.2d 743 (1975)).
70
State v. Gonzalez-Gutierrez, 927 P.2d 776 (Ariz. 1996).
18
accent. They also wore huaraches and heavy tweeds, the typical dress of Central
American natives.
71
Courts have also said that, in immigration proceedings, national origin may be
considered: “Evidence of foreign birth gives rise to a presumption that the person so born is an
alien, and it is presumed that alienage continues until the contrary is shown.”
72
So if the police
learn that someone was not born in the United States, that information can be evidence that the
person is not a citizen.
SB 1070 prohibits restricting enforcement of immigration law “to less than the full extent
permitted by federal law.”
73
Since federal law permits race to be a “relevant factor” in
determining reasonable suspicion for stops and inquiries, the combined effect of these provisions
may be to require state actors to use race to the full extent permitted by federal law. And if a
local police or prosecutorial agency decides not to consider race as a factor, as a matter of policy,
then the agency may be sued by a citizen under A.R.S. § 11-1051(G) citizen suit provisions,
which are discussed in more detail below.
Federal law would prohibit decisions to stop made on race alone. But few stop or arrest
laws or policies anywhere operate based on race alone, without regard to other factors, such as
location or conduct. Even the most explicit forms of racial profiling use race as one factor along
with other factors (for example, the Arizona Department of Public Safety was accused by the
ACLU of stopping motorists on the highway on the basis of race, and entered a court-approved
consent decree in 2005).
74
Most of the Arizona cases allowing consideration of Mexican ancestry, like Brignoni-
Ponce itself, involved stops by the Border Patrol, not by state or local police. Therefore, it may
be an open question of whether the power to discriminate based on race allowed to federal
immigration officers will also be available to state and local police in Arizona. In addition, even
when dealing with the Border Patrol, Arizona cases seem to examine the use of race quite
closely.
75
It is conceivable that Arizona could decline to follow Brignoni-Ponce as a matter of
state constitutional law. Finally, without questioning the validity of Brignoni-Ponce, Arizona
courts could conclude, as did the Ninth Circuit,
76
that there are too many citizens and lawful
residents of Hispanic ancestry for racial appearance to be a valid factor in Arizona.
71
873 F.2d 947, 949 (6
th
Cir. 1989); see also United States v. Soto-Cervantes, 138 F.3d 1319, 1325 (10
th
Cir. 1998)
(in a case arising in New Mexico, court affirms finding of reasonable suspicion of immigration violations based on
factors including “the defendant’s presence in an area known to be frequented by illegal aliens from Mexico”), but
cf. United States v. Alarcon-Gonzalez, 73 F.3d 289 (10
th
Cir. 1996) (no reasonable suspicion even in high
undocumented area).
72
Corona-Palomera v. Immigration and Naturalization Serv., 661 F.2d 814, 818 (9th Cir.1981).
73
A.R.S. § 11-1051(A).
74
Settlement Agreement, United States District Court, District of Arizona, #CIV 01-01463 PCT-JAT (United States
Court of Appeals for the Ninth Circuit, #03-15915).
75
State v. Gonzalez-Gutierrez, 927 P.2d 776, 781 (Ariz. 1996) (“Although defendant's appearance or aspects of his
behavior may have replicated the behavior of some illegal aliens entering the United States, the same pattern is
easily applicable to a large population of both United States citizens and legal immigrants. Without more clearly
articulated evidence, the pattern could not create a reasonable suspicion that defendant and his passenger were in the
country illegally.”); State v. Maldonado, 793 P.2d 1138 (Ariz. Ct. App. 1990).
76
United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
19
Perhaps in light of the statement by Governor Brewer, both AZPOST and federal and
states courts will read the revised language of HB 2162 as if it said:
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. [A.R.S. 11-1051(B)]
Even if HB 2162 is read to exclude the last clause—or again modified by the Arizona
state legislature to in fact eliminate that clause—two substantial issues regarding race, stops and
inquiries under SB 1070 would remain. First, a statement affirmatively not to consider something
that is obvious, immediate, and central, will be as likely to cause people to consider that factor as
not. Think about the statement “do not think about an elephant; you are absolutely forbidden to
think about an elephant.”
And even if in good faith agencies and officers not only produced rules, but confronted
the sociological and psychological realities of the centrality of race and perceptions of race to the
enforcement of immigration provisions, what would that mean in operation? Would reasonable
suspicion be limited to people near the border who are walking in rural areas or appear to be
evading law enforcement? While such facts might make for a very strong case indeed for an
investigative stop, if that is what satisfies the reasonable suspicion requirements of SB 1070 then
– the important exception of voluntary exchanges notwithstanding – the public battles over the
law will be all sound and fury, signifying nothing. We do not believe such narrow interpretation
was the intent or will be the fact under the law.
Or will policy-makers (such as AZPOST, and local police and sheriff departments) forbid
the use of all factors in the multi-factor, highly contextual assessment of reasonable that might be
closely associated with or substitute for race (e.g., accent, language skills, neighborhood)? We
do not believe this is likely.
The existing law of reasonable suspicion allows the use of multiple factors that are
correlated with race and ethnicity. There is no hard and fast rule as to the number of factors
necessary or the weight to be assigned to particular factors. “Reasonable suspicion” is a low
standard. It is less than probable cause, which is less than a preponderance of the evidence.
77
But federal and state courts have also said again and again that reasonable suspicion is contextspecific
and not quantifiable.
Reasonable suspicion can be based upon entirely legal conduct, and conduct consistent
with innocence, since its only function is to determine whether it is appropriate to investigate
further. On the other hand, there are many cases where courts find no reasonable suspicion, even
when there is some evidence, if it appears the police were on a fishing expedition or acted
precipitously.
Federal and state law allows language, accent, clothing and hair style to be relevant
factors. Well established doctrine also allows factors such as neighborhood (including whether it
is said to be a high crime neighborhood, or a neighborhood with a high number of undocumented
people), proximity to the border, origin and destination of travel, the nature and location of a
vehicle, any evasive driving or walking, nervousness, ‘furtive behavior,’ to be taken into
77
A preponderance of the evidence is more than 50%.
20
account. All of these factors are then filtered through the expertise, experience, and training of
the officers involved.
Some, and perhaps most of these factors are so closely correlated with race that a ban on
the use of race as a factor should lead to a ban on many of these factors as well. To the extent it
is a logical impossibility to have a multi-factor, expertise-filtered test of “reasonable suspicion”
that excludes race, color or national origin, then even an explicit ban on race in the law would
not (and could not) result in a ban on the use of race in practice.
Despite the requirement that police be able to articulate the basis for a reasonable
suspicion stop, the courts’ willingness to permit reliance on largely subjective factors invite
factors such as race inform or decide the officer’s decision. The link between race and the most
imprecise of these factors – “furtive behavior” – has been sharply illuminated by annual data on
stops released by the New York Police Department.
78
The most recent report of annual data on
reasonable suspicion stops show that blacks and Latinos were about nine times as likely to be
stopped as whites. The New York Police Department reported more than 575,000 stops in 2009,
resulting in 34,000 arrests, 762 guns, and more than 6,000 weapons other than guns. The arrest
rates were lower for blacks than for whites, and significantly lower for gun possession (1.1% for
blacks compared to 1.7% for whites).
Without knowing the “base” or general population rates of crime or weapon possession,
and without knowing the final resolution for arrests, it is hard to fully assess this data. But one
thing is clear: blacks and Latinos in New York City are stopped much more often than whites.
(Note that these stop and arrest numbers would produce the appearance of a much higher
proportion of blacks and Latinos in jail—but without explaining whether blacks and Latinos
were committing crimes at a higher or lower rate than whites).
Given the importance of the initial decision to stop, what grounds for reasonable
suspicion did the New York police provide? In around 15 percent of the stops the reason was
“fits a relevant description.” In nearly half the stops one reason that officers checked was “furtive
movements.” (Almost 30 percent were “casing a victim or location,” and almost 19 percent
pointed to a residual and unexplained category of “other.”)
Federal and state courts have identified a number of factors in determining whether
reasonable suspicion exists that a person is undocumented. In immigration proceedings, national
origin may be considered: “Evidence of foreign birth gives rise to a presumption that the person
so born is an alien, and it is presumed that alienage continues until the contrary is shown.”
79
So
if the police learn that someone was not born in the United States, that information can be
evidence that the person is not a citizen.
In other words, as a matter of doctrine, experience and common sense, race is so
pervasive to the underlying question of immigration status that it will be hard to remove it from
law enforcement decision-making, whether explicit or implicit, even if the legislature, executive
branch officials and courts tried to do so. (And so far, for the reasons explained above, we do not
believe the statute supports the assertion that they have tried to do so).
78
See Al Baker, New York Minorities More Likely to Be Frisked, N.Y. Times (May 12, 2010).
79
Corona-Palomera v. Immigration and Naturalization Serv., 661 F.2d 814, 818 (9th Cir.1981).
21
Does SB 1070 create a general duty on the part of all citizens and residents to carry
identification? We have previously discussed the questions about enforceability (and
impossibility) raised by the new crime in A.R.S. § 13-1509 criminalizing the “willful failure to
complete or carry an alien registration document.” But what about the provision of 11-1051
which states:
A person is presumed to not be an alien who is unlawfully present in the United States if
the person provides to the law enforcement officer or agency any of the following:
1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before
issuance, any valid United States federal, state or local government issued
identification.
It is important to distinguish the legal and the practical effect of this provision. 11-1051
does not create a requirement that Arizona residents carry identification evidence of citizenship.
Indeed, perhaps out of concern that the statute would be read to create such a requirement, 11-
1051(G) states that “This section does not implement, authorize or establish and shall not be
construed to implement, authorize or establish the REAL ID act of 2005 (P.L. 109-13, division
B; 119 Stat. 302), including the use of a radio frequency identification chip.” Perhaps SB 1070
will spur a national debate about the wisdom and constitutionality of a national or state-by-state
mandatory identification document, but that does not appear to be the goal of its drafters.
But the practical impact, especially for citizens or residents who might be more likely to
be subject to police stops or inquiries, whether mandatory or discretionary, may be considerably
different than the legal duty. Because of the presumption of legal presence created by the listed
documents, it may be prudent for everyone to carry identification so status can be proven on the
street rather than waiting in jail while records are checked.
The United States Supreme Court affirmed the constitutionality of a state statute granting
powers to Nevada officers to request identification in Hiibel vs. Sixth Judicial District Court of
Nevada, 542 U.S. 177 (2004). A majority of states have some form of what are called “stop and
identify” statutes. The Nevada statute at issue in Hiibel provides that “The officer may detain the
person pursuant to this section only to ascertain the person’s identity and the suspicious
circumstances surrounding the person’s presence abroad. Any person so detained shall identify
himself or herself, but may not be compelled to answer any other inquiry of any peace officer.”
80
80
The relevant Nevada statute, Nev. Rev. Stats. § 171.123, states:
1. Any peace officer may detain any person whom the officer encounters under circumstances which
reasonably indicate that the person has committed, is committing or is about to commit a crime.
2. Any peace officer may detain any person the officer encounters under circumstances which
reasonably indicate that the person has violated or is violating the conditions of the person’s parole or
probation.
3. The officer may detain the person pursuant to this section only to ascertain the person’s identity and
the suspicious circumstances surrounding the person’s presence abroad. Any person so detained shall
identify himself or herself, but may not be compelled to answer any other inquiry of any peace officer.
22
Arizona is one of the several dozen states that have some form of “stop and identify”
statute. A.R.S. 13-2412 provides:
A. It is unlawful for a person, after being advised that the person's refusal to
answer is unlawful, to fail or refuse to state the person's true full name on request
of a peace officer who has lawfully detained the person based on reasonable
suspicion that the person has committed, is committing or is about to commit a
crime. A person detained under this section shall state the person's true full name,
but shall not be compelled to answer any other inquiry of a peace officer.
B. A person who violates this section is guilty of a class 2 misdemeanor.
While there is considerable variation in the text of the “stop and identify” statutes across
the states, it is important to emphasize that the Nevada statute in Hiibel was not read by the
United States Supreme Court to empower officers to stop an individual just to check their
identification. Nor was the Nevada statute interpreted to mean that someone legitimately stopped
by the police because of the existence of reasonable suspicion of a crime must carry
identification. What the Supreme Court said was that it was not a violation of Fourth or Fifth
Amendments to the United States Constitution to empower officers to request that a person
identify themselves once they were legitimately stopped, nor would it violate the federal
constitution to arrest a person if they refused to answer the question as to their identify. In this
limited situation, the Court held, a person does not have the right to remain totally silent.
Similarly, A.R.S. 13-2412 does not require identification documents; it creates an offense of
failing to provide any name or of providing a false name to a police officer under these specific
circumstances.
Neither the United States Supreme Court nor, to our knowledge, state courts have held
that police can stop an individual to ask for their identification (though remember police can
request almost any information, including a person’s name, so long as the exchange remains
voluntary and consensual). Nor have any states, to our knowledge, gone beyond the general
concept of requiring a person to identify themselves and additionally required that the
identification or proof be in writing, or in any particular kind of document.
C. The Duty to Enforce “The Full Extent” of Federal Immigration Law &
Citizen Suits
SB 1070 includes two striking provisions previously unknown in United States law. The
first is the provision in 11-1051(A), which provides:
No official or agency of this state or a county, city, town or other political subdivision of
this state may limit or restrict the enforcement of federal immigration laws to less than
the full extent permitted by federal law.
The second is the citizen suit provision in 11-1051(H), which provides:
4. A person must not be detained longer than is reasonably necessary to effect the purposes of this
section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the
immediate vicinity of the place where the detention was first effected, unless the person is arrested.
23
A person who is a legal resident of this state may bring an action in superior court to
challenge any official or agency of this state or a county, city, town or other political
subdivision of this state that adopts or implements a policy that limits or restricts the
enforcement of federal immigration laws, including 8 United States Codes Sections 1373
and 1644, to less than the full extent permitted by federal law.
The meaning of a state provision which requires officials and agencies to enforce federal
immigration provisions to “the full extent permitted by federal law” is unclear. One literal but
highly implausible reading is that state officials and agencies must enforce federal immigration
laws before taking care to enforce any other laws. On the other hand, the provision might be read
simply to limit agency heads from issuing policies affirmatively directing line staff not to enforce
federal immigration laws.
While there may be other interpretations in between these two extreme readings, they are
not obvious from the language. Absent the citizen suit provisions, the meaning of 11-1051(A)
would be left to executive branch officials to resolve. But the citizen suit provisions make the
uncertain meaning of 11-1051(A) a critical question for local law enforcement agencies in
Arizona.
The citizen suit provisions are extraordinary for many reasons, including the idea that
suits can be brought for any policy that limits “full” enforcement—as opposed to, for example, a
lawsuit for the excessive use of force by police officers. Indeed, federal and state law build very
high barriers of immunity (sovereign immunity for agencies; qualified immunity for officers)
that make it difficult for people to sue even for serious harms caused by public actors.
Traditional tort law bars any recovery against an actor who fails to “rescue” some other person
from harm, even if the rescue would be safe and effective. The courts have been reluctant to
impose such a duty to act on public or private actors.
The citizen suit and “full extent” provisions are unwise policies from the standpoint of
public safety. They have the potential to tie up courts and law enforcement agencies, and to
spend valuable resources defending policies and actions that we believe are likely in the end to
be upheld by courts. We believe state courts will work hard within the law to avoid readings that
would lead courts to regulate the day-to-day workings of local police departments. But in our
view the legislature would be wise to eliminate the citizen suit provision, which is especially
pernicious in that it allows an individual to co-opt law enforcement and legal resources.
But as unwise as these provisions are, because they are so unfamiliar it is not clear
whether the “full extent” and citizen suit provisions raise additional federal or state issues. The
question of the allocation of power between a state and local entities is a question of state and
local government law. While analogy to principles of federalism might suggest that the state
cannot co-opt and direct local law enforcement, the analogy is a false one. States are not
creatures of county and local government, or of the citizens of the state, in the way that the
federal constitutional and the federal government is a product of agreement among the states.
Typically state law grants the power to counties and cities to issue local laws and
regulations, and can limit or control that authority. But SB 1070 raises the question whether the
state government can also direct and control the priorities for local expenditures. For example,
can the state direct that all country or city or other local funds be expended only on the
24
enforcement of one or a few crimes or priorities? It is perhaps one thing to say that states must
grant the authority to counties and other local entities to form governments, issue laws, and raise
revenues, but another to leave to the state legislature the determination of precisely how those
local dollars are to be spent.
V. Other Provisions of SB 1070
Sections 7, 8, and 9 of the new Arizona immigration law modify the 2007 Legal Arizona
Workers Act, which revokes the state licenses to do business in Arizona of employers who
employ illegal aliens.
81
Specifically, sections 7 and 8 create an entrapment defense for
employers who violate the 2007 Act.
82
These sections do not appear to make any significant
changes to existing state law, which already contained a general entrapment defense.
83
Section 9
creates a recordkeeping requirement for employers who seek to comply with the 2007 Act.
The 2007 Act previously required employers to verify the employment eligibility of their
employees through the e-verify program. Section 9 expands the verification obligation by further
requiring employers to keep a record of that verification for either three years or the length of
employment, whichever is longer.
84
None of these three sections appears independently to raise
any constitutional issues,
85
and constitutional challenges to the 2007 Act have been unsuccessful
to date.
86
Section 12 creates a fund for Gang and Immigration Intelligence Team Enforcement.
87
The Fund will be established with monies from legislative appropriations and with monies
collected pursuant to § 11-1051, the section that permits private citizens to bring actions for civil
penalties against political entities that adopt policies or practices that limit or restrict “the
enforcement of federal immigration laws to less than the full extent permitted by federal law.”
88
Although the collection of civil penalties pursuant to § 11-1051 and the manner in which money
from the Fund is spent may raise their own constitutional and other legal issues, the creation of
this Fund, standing alone, does not appear to raise any issues.
81
A.R.S. §§ 23-212(K), 23-212.01(K), 23-214(A).
82
A.R.S. §§ 23-212(K), 23-212.01(K).
83
See A.R.S. § 13-206.
84
A.R.S. § 23-214(A).
85
One might argue that a specific feature of the Arizona entrapment defense raises constitutional concerns because it
requires a criminal defendant, in order to claim entrapment, to “admit by the [defendant]’s testimony or other
evidence the substantial elements of the offense charged.” A.R.S. § 13-206 (A). This feature is also present in the
defenses created by sections 7 and 8. One might argue that this requirement violates a defendant’s right to due
process by eliminating the presumption of innocence and the requirement that the state prove every element
necessary to constitute the crime. See generally In re Winship, 397 U.S. 358 (1970). This argument finds some
support in Matthews v. United States, 485 U.S. 58 (1988). However, Arizona courts have rejected this argument, see
State v. Stevenson, No. 06-0871, 2008 WL 2792007, at *5-*6 (Ariz. Ct. App. Feb. 12, 2008), and in any event
sections 7 and 8 involve an entrapment defense to a non-criminal statute. The presumption of innocence and the
requirement that each element be proven beyond a reasonable doubt do not extend to the sort of licensing
proceedings contemplated by the 2007 Act.
86
See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), petition for cert. filed, 78 U.S.L.W.
3065 (U.S. July 24, 2009) (No. 09-115).
87
A.R.S. § 41-1724.
88
A.R.S. § 11-1051(G).
25
VI. Is SB 1070 Invalidated by Federal Law?
There is little serious question that many parts of the statute are constitutional. For
example, Arizona may allow or require its police to enforce federal law to the extent “permitted
by federal law”;
89
it may require state officers to report convictions to the Federal government;
90
and it may allow arrests for deportable public offenses.
91
The question of constitutionality applies primarily to the new Arizona immigration
crimes that are based on federal immigration crimes. The first question is whether the state has
power to regulate immigration at all. The second is, assuming there is some state power,
whether these laws are preempted by federal law.
A. Does Arizona have the Power to Regulate Immigration?
The Supreme Court has often said that immigration is exclusively a federal power. In the
earliest years of the country immigration was not regulated. Late nineteenth century cases,
decided in the context of less stringent federal immigration laws, nonetheless emphatically
affirmed the federal power to regulate immigration and therefore the Court invalidated a number
of state efforts to regulate the incoming of aliens it deemed undesirable.
92
The Court has allowed some incidental regulation of immigration in the course of
pursuing other goals,
93
and does not require that non-citizens be treated identically to citizens,
although statues must justify distinctions.
94
In Chy Lung v. Freeman, for example, the Court
invalidated a statute designed to keep prostitutes from immigrating to California. The Court
explained that state policies might cause international tension:
has the Constitution done so foolish a thing as to leave it in the power of the States to
pass laws whose enforcement renders the general government liable to just reclamations
which it must answer, while it does not prohibit to the States the acts for which it is held
responsible? The Constitution of the United States is no such instrument. The passage of
laws which concern the admission of citizens and subjects of foreign nations to our
shores belongs to congress, and not to the states.
95
89
A.R.S. § 11-1051(A).
90
A.R.S. § 11-1051(C).
91
A.R.S. § 13-3883(A)(5).
92
Chy Lung v. Freeman, 92 U.S. 275 (1876); Henderson v. New York, 92 U.S. 259 (1876); see also Edye v.
Robertson, 112 U.S. 580 (1884).
93
DeCanas v. Bica, 424 U.S. 351, 355-56 (1976) (“California has sought to strengthen its economy by adopting
federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no
federal right to employment within the country; even if such local regulation has some purely speculative and
indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of.”)
94
Compare In re Griffiths, 413 U.S. 717 (1973) (impermissible for state to exclude non-citizens from bar) with
Ambach v. Norwick, 441 U.S. 68 (1979) (state could require teachers to be citizens)
95
92 U.S. at 280.
26
The enforcement of federal laws by state officers, the Court explained, also risked relations with
foreign nations: “A silly, an obstinate, or a wicked [state] commissioner may bring disgrace upon
the whole country, the enmity of a powerful nation, or the loss of an equally powerful friend.”
96
In the absence of Federal law, the Arizona statute would be invalid under these
authorities as indistinguishable from the old state statutes designed to exclude undesirable
immigrants. SB 1070 cannot be characterized as an incidental regulation of immigration, rather
Arizona’s statute is explicitly a direct regulation of immigration. SB 1070 states its purpose as
follows:
The legislature declares that the intent of this act is to make attrition through enforcement
the public policy of all state and local government agencies in Arizona. The provisions
of this act are intended to work together to discourage and deter the unlawful entry and
presence of aliens and economic activity by persons unlawfully present in the United
States.
97
Arizona could not have enacted this law in the absence of federal regulation; if it is valid now, it
must be because the rise of federal immigration law itself somehow increased state authority
over the subject. There is no explicit delegation of regulatory authority in federal immigration
law to Arizona or other states, so the authorization, if it exists, is implied.
Professor Kris Kobach, who has been identified as an assisting with the bill, has argued
in a law review article that the very fact that the United States has enacted immigration statutes
gives states authority to regulate the same area: “State governments possess the authority to
criminalize particular conduct concerning illegal immigration, provided that they do so in a way
that mirrors the terms of federal law.”
98
The argument is beguilingly simple: Who could object to getting help with carrying out a
mirror-image of their own policy? But a moment’s thought using concrete examples shows that
the argument is flawed: The fact that Congress created criminal laws for Indian Reservations and
assigned the FBI to enforce is not evidence that they would like state law enforcement to make
arrests on Indian reservations. The Uniform Code of Military Justice criminalizes, among other
things, missing a movement of a ship
99
or disrespecting a superior officer.
100
If a state enacted
mirror-image criminal offenses for active duty members of the armed forces, would it be free to
prosecute violators, on the ground that it is just helping carry out federal policy? Surely, the
answer is no.
Professor Kobach’s conclusion does not appear to be directly supported by the authorities
on which he relies. He cites cases allowing state officers to make arrests for federal crimes, and
then turn over defendants to federal authorities for prosecution. From these he concludes that
96
Id. at 279.
97
SB 1070, §1.
98
Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration, 22
GEO. IMMIGR. L.J. 459, 475 (2008).
99
UCMJ Art. 87.
100
UCMJ Art. 89.
27
states can enact their own statutes, prosecute defendants in state courts, and imprison them in
state prisons.
101
But there is a world of difference between states making arrests, and states arresting,
charging, prosecuting, convicting and incarcerating. Under the conduct approved in the cases
cited, federal authorities can decline to prosecute in furtherance of some uniform federal policy,
or they can apply other ameliorative measures which are part of the law. It might not interfere
with federal policy for local police to arrest a sailor who ran off from her ship before it steamed
out of port, and turn her over to the U.S. Navy. It would interfere with federal policy if, for
example, the state decided to prosecute and imprison the sailor under a mirror-image statute
when the Navy wanted to impose some other discipline and return the sailor to duty.
Similarly, it would interfere with federal policy for the state to imprison an immigration
violator when the federal government would have exercised its power to decline to prosecute
criminally and its statutory power to grant some form of relief. It would be an even more serious
interference if the United States was in the process of seeking a diplomatic solution with some of
the home countries of the undocumented population, but bad blood generated by “a silly, an
obstinate or a wicked” state officer frustrated those efforts.
The national government is, in principle, one of limited powers, and much of what it does
is specialized and of national and international concern. Therefore, Professor Kobach’s notion
that because the federal government can regulate something, that is strong evidence that the
states can as well, is fundamentally misguided. If there is some source of state authority to
generate immigration policy, it will have to come from somewhere else, not yet identified.
B. Is the Statute Preempted?
A state law on a subject that is within its lawmaking authority may nevertheless be
invalid because it is preempted. Article VI, Clause 2 of the United States Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
There are three basic doctrinal variations on preemption. First, Congress can expressly
preempt state legislation by stating so in a statute. Second, under the doctrine of “field
preemption,” state laws may be impliedly preempted because the breadth and depth of federal
action indicates an intention to occupy the field to the exclusion of the states. Third, a state law
is impliedly preempted even if none of the foregoing apply, but it is impossible to comply with
both state and federal law, or state law will conflict with the achievement of congressional goals.
The second and third varieties of preemption —which often overlap insofar as even
complementary state laws may conflict with Congress’s agenda when federal law preempts the
field — are potentially at issue here, because it is clear that the states have some authority over
101
Kobach, 22 GEO. IMMIGR. L. J. at 475, n. 83-85 (citing Gonzales v. Peoria, 722 F.2d 468, 474 (9
th
Cir 1983);
Marsh v. United States, 29 F.2d 172 (2d Cir. 1928)).
28
immigrants, and there is no statute by which the United States has excluded states from
regulating non-citizens entirely.
There are several important precedents. In Hines v. Davidowitz,
102
the Supreme Court
invalidated a Pennsylvania alien registration law that in some ways duplicated federal law. It
involved the same federal laws that Arizona borrowed in A.R.S. § 13-1509(A), namely parts of
the Alien Registration Act of 1940. The United States Supreme Court reasoned that the state
scheme interfered with a uniform federal program, and that such interference could have
international implications. Accordingly, “where the federal government . . . has enacted a
complete scheme of regulation and has therein provided a standard for the registration of aliens,
states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or
complement, the federal law, or enforce additional or auxiliary regulation.”
103
The Court in Davidowitz was concerned both that the state law might impose
requirements not imposed by federal law, and with the possibility of overzealous enforcement.
The federal law was intended to leave non-citizens “free from the possibility of inquisitorial
practices and police surveillance that might not only affect our international relations, but might
also generate the very disloyalty which the law has intended guarding against.”
104
This case is often read as preempting the field of alien registration,
105
which would
invalidate Arizona’s law. Moreover, the Arizona statutes share some of the vices of the
Pennsylvania law. They subject non-citizens to the possibility of two convictions for failing to
register—one state, one federal—and therefore substantially more incarceration and fines than
contemplated by the federal law. Perhaps this is an “additional or auxiliary” regulation that a
state may not enforce under Davidowitz.
However, it is also clear that the Court in Davidowitz had in mind primarily “law-abiding
aliens,” that is, those permitted to be in the United States. Arizona’s statutes punish only to those
who are not authorized to be in the United States, although under any understanding of the
enforcement of the Arizona law, inevitably citizens of the United States and lawful permanent
residents will also be affected.
Perhaps state regulation of undocumented non-citizens, at least outside the area of
registration, raises fewer international issues of the type that concerned the Court in Davidowitz.
In DeCanas v. Bica,
106[
in an opinion written by Justice Brennan, the Supreme Court
unanimously upheld a California law criminalizing companies that employed non-citizens who
were not authorized to work in the United States. Since 1976, when DeCanas v. Bica was
102
312 U.S. 52 (1941).
103
Id. at 66-67.
104
Id. at 74.
105
Baltimore & Ohio R. Co. v. Com., Dept. of Labor and Industry, 334 A.2d 636, 639 (Pa. 1975); Developments in
the Law—Immigration Policy and the Rights of Aliens VI. Discrimination Against Documented Aliens, 96 Harv. L.
Rev. 1400, 1416 (1983) (“Hines v. Davidowitz held that a Pennsylvania statute requiring aliens to register with state
authorities was preempted by a less rigorous federal registration scheme. The Court decided that, in carefully
balancing the government's need for information against the infringement of aliens' personal liberties, Congress had
“occupied the field”' of alien registration.”)
106
424 U.S. 351 (1976).
29
decided, Congress passed its own regulation and prohibition of undocumented labor, the
Immigration Reform and Control Act of 1986. However, a number of courts,
107
including the
Ninth Circuit,
108
have held that IRCA does not entirely preempt state legislation regarding
undocumented non-citizens.
What is clear is that SB 1070 represents Arizona’s dissatisfaction with federal
enforcement policy. Arizona’s statute draw from federal statutes, but, as stated above, the
Arizona legislature could simply have required all Arizona police to arrest people for violating
those federal statutes and turn them over to federal authorities. This would have the advantage of
imposing the cost of pretrial detention, prosecution and incarceration on the United States rather
than on the state.
But Arizona knows that the United States would not prosecute garden variety violations,
in part because the immigration-related federal agencies are working on bigger cases, and in part
because the federal policy is to deal with the problem another way. Republican and Democratic
Chief Executives alike have rejected even civil deportation as a solution to the problem of
undocumented immigration, which is a cheaper and more moderate response than criminal
prosecution. In 2006, President Bush stated: “Massive deportation of the people here is
unrealistic. It's just not going to work.”
109
Similarly, in 2009, President Obama has made clear
that his policy is that people already here should be given a “pathway to citizenship.”
110
In the legal system, the dual sovereigns jealously guard their ability to choose the forum
as well as the substantive law, because it affects outcomes. For example, states have long
resisted, and Congress has restricted, the ability of federal courts to review state criminal
convictions on habeas corpus. The federal and state courts apply the same federal constitutional
rules, but the states want to do it themselves. Statutes and constitutional provisions permitting
removal of diversity cases and cases involving federal officers and rights from state to federal
court are another example. Where important federal concerns are at stake, the law provides
parties with the choice of a federal forum. Even when judicial jurisdiction is shared, however, the
respective forums are obliged to follow the applicable substantive law of the sovereign with
authority over that subject matter. The choice of forum is not to be “outcome determinative.”
Perhaps policy choices involving prosecution with international and foreign policy
overtones share this quality. The theme of protection of foreign relations as a reason that
immigration law and policy largely reside in the federal government runs through more than 100
years of Supreme Court case law in this area. The substantial concerns expressed about SB 1070
by foreign governments and foreign citizens therefore are relevant to the preemption issue—not
because foreign law has a direct relevance to U.S. law, but because the history of U.S.
107
Coma Corp. v. Kansas Dept. of Labor, 154 P.3d 1080 (Kan. 2007) (Kansas law requiring earned but unpaid
wages to be paid not preempted); Balbuena v. IDR Realty LLC, 845 N.E.2d 1246 (N.Y. 2006).
108
Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9
th
Cir. 2009).
109
George W. Bush, Immigration Reform: Address in California, Irvine, California, Apr. 24, 2006
(http://www.presidentialrhetoric.com/speeches/04.24.06.html).
110
Barack Obama, August 10, 2009 (“we can create a system in which you have strong border security, we have an
orderly process for people to come in, but we're also giving an opportunity for those who are already in the United
States to be able to achieve a pathway to citizenship so that they don't have to live in the shadows, and their children
and their grandchildren can have a full participation in the United States.”)
http://www.nytimes.com/2009/08/11/world/americas/11prexy.text.html?_r=1&ref=americas&pagewanted=all
30
immigration law and its assessment by the United States Supreme Court is so attentive to foreign
relations as a reason that the federal government, not the states, must be the dominant voice in
the immigration arena. Such criticisms include statements by President Calderón of Mexico
speaking to Congress on May 20, 2010, where he said that SB 1070 “introduces a terrible idea:
using racial profiling as a basis for law enforcement.”
111
Travel advisories issued by other
countries also shore up the sense that Arizona’s actions have triggered foreign relations
sensitivities if not a foreign relations crisis. See Jonathan Cooper & Paul Davenport, Lawsuits
Target New Immigration Law, Associated Press, Apr. 29, 2010, available at
http://www.msnbc.msn.com/id/36853483/ns/us_news-crime_and_courts/. (discussing travel
advisory by El Salvador).
The Supreme Court has recognized that declining to pursue criminal charges is as much a
part of “tak[ing] Care that the Laws be faithfully executed” as is bringing a case.
112
In this
context, non-prosecution may be regarded as a policy choice, one driven in part by traditional
criminal justice considerations, but also in part on national economic, humanitarian, and foreign
policy concerns. For example, it might be regarded as harming the international reputation of the
United States if it incarcerated hundreds of thousands or millions of undocumented non-citizens;
even if the United States were to attempt to deport large numbers overseas, it might be prudent to
coordinate this exodus with the receiving countries. On this view, it is no small matter for the
states to prosecute federal crimes that the federal government has not inadvertently overlooked,
but consciously determined should not be brought.
Plyler v. Doe
113
is relevant here. In Plyler, the Court, 5-4, held that Texas could not
exclude undocumented non-citizen children from its schools. The case was decided on equal
protection grounds, and focused on the harm to children, who were not responsible for their
illegal presence. But the Court also concluded that there was a conflict with federal immigration
policy, because of the likelihood that the children would not ultimately be deported. The
prohibition, the Court said,
does not operate harmoniously within the federal program. To be
sure, . . . these children are subject to deportation. But there is no
111
Brian Knowlton, Calderón Assails Arizona Immigration Law on Detention, N.Y. Times, May 20, 2010.
112
Greenlaw v. United States, 128 S. Ct. 2559, 2565 (2008) (“This Court has recognized that “the Executive Branch
has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418
U.S. 683, 693 (1974)); Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“we recognize that an agency's refusal to
institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive
Branch not to indict-a decision which has long been regarded as the special province of the Executive Branch,
inasmuch as it is the Executive who is charged by the Constitution to “take Care that the Laws be faithfully
executed.” U.S. Const., Art. II, § 3.”). Indeed, if the federal government were to directly demand that state officials
execute its immigration laws, this likely would violate the “anti-commandeering” federalism and Article II-based
principles articulated in Printz v. United States, 521 U.S. 898 (1997). The Article II-based argument is that state
executive officials cannot be conscripted to enforce federal law because they lack constitutionally required federal
executive oversight. Congress presumably could not “consent” to such usurpation of federal executive authority
under separation of powers principles.
Concerns about diversion of state and local law enforcement agencies to enforcement of the new state
measure already have prompted the Arizona Association of Chiefs of Police to oppose the measure. See Press
Release, Arizona Association of Chiefs of Police, AACOP Statement on Senate Bill 1070, available at
http://www.leei.us/main/media/AACOP_STATEMENT_ON_SENATE_BILL_1070.pdf.
113
457 U.S. 202 (1982).
31
assurance that a child subject to deportation will ever be deported.
An illegal entrant might be granted federal permission to continue
to reside in this country, or even to become a citizen... It would, of
course, be most difficult for the State to justify a denial of
education to a child enjoying an inchoate federal permission to
remain.
114
Here, too, the national government has signaled that the ordinary, otherwise law-abiding
undocumented person who is already here is not a priority even for civil deportation, to say
nothing of criminal prosecution.
The Plyler Court also noted that President Reagan’s Attorney General, William French
Smith, testified before Congress that the undocumented population
is largely composed of persons with a permanent attachment to the Nation, and that they
are unlikely to be displaced from our territory: ‘We have neither the resources, the
capability, nor the motivation to uproot and deport millions of illegal aliens, many of
whom have become, in effect, members of the community.’
115
In addition to the foreign policy concerns with regulation of people who are foreign
nationals, there are also domestic concerns. Strict Arizona enforcement will undoubtedly
encourage some undocumented non-citizens to leave the United States, but others will go to
other states. This will put pressure on other states to impose their own regulations, presumably
even more energetic, or suffer an influx of undocumented individuals. The concerns, at least, of
the Dormant Commerce Clause cases seem relevant here.
116
Dormant Commerce Clause
cases,
117
as well as Article IV Privileges and Immunities Clause cases,
118
repeatedly stress the
concerns of state protectionism and discrimination against state outsiders. Both underscore the
114
Id. at *** (citations omitted).
115
Id. at *** (citations omitted). This is not to say that Plyler necessarily resolves the matter of federal preemption.
On the contrary, opponents of preemption can point to footnote 23 of Plyler, which suggests that states can deter
“unchecked unlawful migration” when that might “impair the State’s economy….” 457 U.S. 228, at n. 23.
116
See Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353, 359 (1992)(“As
we have long recognized, the . . . Commerce Clause prohibits States from “advanc[ing] their own commercial
interests by curtailing the movement of articles of commerce, either into or out of the state.” H.P. Hood & Sons, Inc.
v. Du Mond, 336 U.S. 525, 535 (1949). A state statute that clearly discriminates against interstate commerce is
therefore unconstitutional “unless the discrimination is demonstrably justified by a valid factor unrelated to
economic protectionism.” New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274 (1988).”); Edwards v. California,
314 U.S. 160, 173 (1941) (“The issue presented in this case, therefore, is whether the prohibition embodied in
Section 2615 against the ‘bringing’ or transportation of indigent persons into California is within the police power of
that State. We think that it is not, and hold that it is an unconstitutional barrier to interstate commerce.”).
117
See, e.g., Hughes v. Oklahoma, 441 U.S. 322, 325-26 (1979)(one of primary purposes of the Commerce Clause
was to prevent “economic Balkanization that had plagued relations among the Colonies and later among the States
under the Articles of Confederation.”)
118
See, e.g., Toomer v. Witsall, 334 U.S. 385, 395 91948)(noting that the Clause was designed to “fuse into one
nation a collection of independent, sovereign states). Of course, the Clause does not literally apply to non-citizens;
only citizens and natural persons (e.g. not corporations) can invoke Privileges and Immunities Clause of Article IV.
The same is true of the Privileges and Immunities Clause of the Fourteenth Amendment. But the Article IV clause
is further textual evidence that the Framers’ concern about arbitrary state-imposed barriers to the free flow of
commerce and individuals trumped their competing concern about preserving state sovereignty in important
respects.
32
need for a national market, and both also note how state and local laws may privilege state
insiders in ways that promote hoarding of state resources, that exclude labor from other
jurisdictions, and that erect state-centered entry barriers to the flow of common concerns in ways
that prevent the state from bearing its fair share of shared national burdens. These concerns
become more serious, not less so, when the source of competition or threat to state interests is
foreign rather than domestic.
119
For one thing, in the latter scenario the problems that arise are
even more obviously within congressional jurisdiction to manage because the subjects are not
citizens of any state; as such, they have no franchise or representation whatsoever. For another,
where the commercial interests involve foreign affairs or relations, national coherence is
particularly necessary.
Congressional authority also assures that the problem of uneven distributions of burdens
across the states be handled in a form that takes all state’ interests into account; the governors
have political vehicles for expressing their collective and individual concerns to the national
government, and their citizens, of course, can influence the legislative process directly through
voting and lobbying. Even states with very small populations have a powerful voice in the
process of forging national policy, through the “great compromise” – creation of the United
States Senate, which affords every state the same number of senators regardless of population.
The Dormant Commerce Clause also allows Congress to respond directly to state
interests by expressly sanctioning state-level measures.
120
As such, the preemption arguments
and Dormant Commerce Clause arguments overlap substantially in matters that touch on
interstate commerce. Moreover, proponents of the new state immigration laws do not veil their
purposes, an important issue in Dormant Commerce Clause cases. Indeed, they make very clear
both why they are acting and that a primary concern is the economic burden they believe
undocumented persons represent.
121
The possibility of an inconsistent patchwork of varying
solutions therefore suggests, at a minimum, that a uniform approach is desirable as a matter of
national economic policy, if not constitutional demand.
It is important to emphasize, however, that an assessment of whether a state law is either
expressly or impliedly preempted is often not a simple matter. Just as the Framers anticipated
that the federal government would reign supreme in key areas of national concern, they also
recognized the need to preserve state sovereignty over matters that traditionally belonged to state
and local authority. The line between plenary exclusive federal authority over naturalization and
related concerns, and shared or “cooperative federalism” in areas that involve traditional state
“police powers,” thus is often hazy.
122
In fact, courts have stated that there is a presumption
119
See South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 100 (1984)(noting that state restrictions
that burden foreign commerce are subject to especially close scrutiny so that the federal government can “speak with
one voice.”)
120
See, e.g., New York v. United States, 505 U.S. 144 (l992)(upholding provisions of the Low-Level Radioactive
Waste Policy Amendments Act of 1985 that authorized states with federally approved waste sites to discriminate
against interstate commerce by rejecting waste from nonconforming states).
121
See Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal
Immigration, 22 GEO. IMMIGR. L.J. 459, 459 (2007-2008) (asserting that “[w]ithout question, the single largest
factor motivating state governments to enact legislation discouraging illegal immigration is the fiscal burden that it
imposes on the states.”)
122
Here again, the footnote from Plyler is relevant. The Court there concedes that states have a powerful interest in
protecting the state economy and its ability to provide essential services. See note 101 supra.
33
against preemption of state power in areas of traditional state power.
123
Again, a strong — but
hardly dispositive — argument in favor of field preemption derives from Davidowitz,
124
which
stated that the federal registration act creates a “single integrated and all-embracing system.”
125
But as applied to SB 1070, arguments about federal intention to divest states of power (or
correlatively, that the federal government has acted to grant states this power) point both ways.
On the one hand, President Obama and other members of the Executive Branch have expressed
deep concern about the wisdom of the measure, and the states themselves effectively concede
this part of the preemption point by declaring openly that they are acting because the federal
government has not acted in this same area. If the states believed they had been granted power
to act, their legislators presumably would rely on that express or implied authority rather than on
congressional silence.
On the contrary, even the staunchest proponents of these new measures make clear that
they are stepping into a perceived void where Congress is expected to act first and foremost, if
not exclusively. Although they also are asserting that preemption power is weakest where it
butts up against “traditional” state powers, they are not relying exclusively or even primarily on
Tenth Amendment or “states’ rights” arguments.
126
That is, they are not insisting – it would be
pointless to do so in the immigration arena – that Congress has no legitimate power here, or that
it has overstepped its enumerated authority. Rather, they are complaining that the federal
government has failed to exercise its power.
In addition, it has become common to intone these days that “all states are border
states.” As such, a national solution to the border issue seems imperative, lest interstate
dynamics thwart our ability to forge sensible policy in this arena. The stunning proliferation of
new state laws that attempt to grapple with the consequences of immigration compound the need
for a coherent solution; were a comparably Byzantine new patchwork of laws to emerge
regarding bankruptcy, interstate highway safety, or other aspects of homeland security, this need
for a federal trumping solution would be obvious and incontrovertible.
On the other hand, if Congress remains inert in the face of Arizona’s outright defiance of
Congress, and Arizona’s demand that the federal government step up to the regulatory plate and
“do something,”
127
then the argument that the measure usurps federal authority grows weaker —
politically if not constitutionally. It no longer will be an enigmatic silence that courts must
123
See Chicanos Por La Causa v. Napolitano, 558 F.3d 856 (9
th
Cir. 2009), quoting United States v. Locke, 529 U.S.
89, __(2000). But see Lozano v. City of Hazleton, 496 F. Supp 2d 477 (M.D. Pa. 2007) (striking down local antiimmigration
law on, inter alia, preemption grounds), appeal pending.
124
312 U.S. 52 (1941).
125
Id. at
126
The absence of this brand of states’ rights arguments here is telling, in an historical moment when states have
been defying Congress in other arenas that involve national Commerce Clause and Tax and Spend authority,
especially health care.
127
Nobody doubts that this is the intention of Arizona or of other states that have introduced or passed bills dealing
with illegal immigration. As Professor Kobach asserts: “It is undeniable that the urge to reduce illegal immigration
has become a powerful force in state legislatures across the country.” Kris W. Kobach, Reinforcing the Rule of
Law: What States Can and Should Do to Reduce Illegal Immigration, 22 GEO. IMMIGR. L.REV, 459, 459 (2007-
2008). There are signs, as of this writing, that the federal beast is awakening: President Obama ordered 1200
National Guard troops to the US/Mexico border on May 25, 2010, and Governor Jan Brewer immediately described
the move as a welcome sign that Arizona’s law had begun to have its intended effect.
34
interpret to determine congressional will; the silence will become, Arizona surely will argue, a
deafening one in the face of legislation that is explicit and notorious. If other states follow
Arizona’s suit, and the Congress still remains silent, then this argument will grow even stronger.
Courts can more easily construe this federal silence as approval of state action by inaction and a
“clear and manifest purpose” to occupy the field will be much harder to infer.
Still another complexity is that federal immigration law does not cover only
naturalization or “pure” immigration law. Rather, it has extended to other arenas once associated
more traditionally with state police powers.
128
As Professor Juliet Stumpf has noted in an
historical review of state and local power over immigration, “[s]hifting federal immigration law
into areas considered strongholds of state power is bound to influence whether courts will
associate a challenged state action with acceptable exercises of state power or forbidden
meddling in foreign affairs.”
129
But she also warns that courts should be wary of states’ rights
arguments here that mask invidious purposes.”
130
Characterizing the new immigration laws –
especially ones with criminal sanctions –as garden variety state regulation over domestic
concerns that are not preempted by federal law blinks the reality that the subjects of these laws
are exclusively noncitizens, and thus a politically powerless population that has historically been
subject to harsh and nativist measures.
As the earlier discussion of “racial profiling” shows, the modern measures aimed at
deterring illegal immigration have inevitable spillover effects on legal aliens and citizens from
particular countries –especially “Salvadorans, Guatemalans, and Mexicans.”
131
As such, “[t]he
proliferation of subnational criminal statutes affecting noncitizens and the troubling motives that
may underlie them counsel against permitting states to join the plenary power of the federal
government with their own criminal police powers.”
132
In sum, the determination of implied preemption requires a nuanced judgment about the
purposes and scope of both the relevant federal and state law, and how the two will interact. It
also requires close attention to the consequences of allowing states to intervene in this area of
federal power — even where the states have quite credible claims that immigration issues
intersect with traditional matters of local and state concern.
As we have outlined, there are important divergences between federal law of immigration
and the new Arizona law. Although some of these divergences may have been unintentional, the
primary thrust of the law is unequivocally an effort to prod the federal government into
exercising its well accepted power to police immigration, and to demand a level of civil and
criminal enforcement that the federal government heretofore has not deemed feasible or prudent.
Whether this will be construed as unconstitutional interference with federal exercise of its
plenary power over immigration law policy remains to be seen. Legal challenges that assert field
128
See Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration, 86 NORTH
CAROLINA L. REV. 1557, 1583-96 (2008)(discussing the transformation of federal immigration policy to extend
beyond border-focused foreign policy into areas of domestic concern).
129
Id. at 1605.
130
Id. at 1614.
131
Id.
132
Id. at 1615.
35
preemption arguments already have been filed,
133
and more are likely to follow. In this
memorandum we have only sketched some of the complex interactions of federal law and SB
1070 that may raise preemption concerns.
///
Conclusion
SB 1070 raises a number of important legal questions about race, security,
sovereignty, civil rights, state power, and foreign relations. We have endeavored to offer
some preliminary thoughts on some these questions. But we do not claim to have
definitive answers. Indeed, given the novel features of SB 1070 such as the citizen suit
provision, and the lack of clarity surrounding some of the important legal issues
presented by SB 1070, we imagine that it may take some time for all of the questions that
we have identified to be resolved.
We hope that this report will help to inform a broader audience about the actual
content and the legal issues raised by the bill. We also hope to encourage a conversation
among experts in constitutional law, immigration law, criminal law, criminal procedure,
state and local law and other fields, so that these difficult and important legal questions
will receive adequate attention. We offer this preliminary report in the belief that these
questions—and the complex policy choices that produced SB 1070 and the larger debates
over immigration law and enforcement—are worthy of sustained and careful attention.
We also believe that these larger issues are likely to be part of the Arizona and national
debates for some time to come.
133
See, e.g. Friendly House v. Whiting, Case No. CV 10-1061 (D. Az. 2010)
