Saturday, April 28, 2012

SB 1070 : Arizona's controversial immigration law

By Yasser Latif Hamdani

The controversial immigration law - favoured by self styled libertarians- promises to invoke passions that date as far back as the American civil war- the question of the states' right to interpose.

So what does the law say:

For any lawful contact made by a law enforcement official or a law enforcement agency…where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person
Kris Korbach who helped draft this law defines lawful contact in the following terms:
the officer is already engaged in some detention of an individual because he's violated some other law. ... The most likely context where this law would come into play is a traffic stop.

This author says that there is nothing libertarian about this law.

Meanwhile Sonia Sotomayor - the Supreme Court Justice who many liberals pin their hopes on - is said to be receptive to this law. To this end read this column.

Now coming back to the issue that interests me as an amateur legal historian i.e. "interposition" by state over federal law. It pertains to the state's claim to the right of interposition between federal law and its own populations on key issues. Of course this was the central legal dispute that led to the American Civil War.

As recently as 60 years ago, the southern states claimed interposition to avoid implementation of Brown v. Board of Education of Topeka 347 U.S 483 which made segregation unconstitutional. US Supreme Court however held in the case of Cooper v. Aaron 358 US 1 (1958) that Arkansas could not ignore federal law thereby putting an end to the idea of interposition as part of constitutional law.

The government's brief in the matter alleges that Arkansas is trying to interpose itself on key issues of national security and foreign policy. Therefore the outcome of this would be very interesting for scholars of constitutional law every where.

1 comment:

  1. Yasser, from over where you are it may look like an “interesting” case whose outcome could go either way. However, actually the SB 1070 was drafted very cleverly by a couple of lawyers (see It conducts just enough tweaking (and no more) of the Federal immigration laws to provide cover to the conservative and borderline conservative justices of the Supreme Court if they wish to change the balance of Federal/state roles in matters of immigration. The way it appears at this time, those folks are apparently ready to do just that. The necessary legalese can always be developed to make whatever case one wishes to make (like the late Johnny Cochran observed, in reality, lady justice is neither blind nor color-blind). Here is how I see things moving:
    (1) With a majority (probably with a significant majority) the Court will allow some of the key provisions of SB 1070 to go into effect.
    (2) This will embolden the copycat states to develop similar language – leading to a patchwork of immigration laws and rights of aliens differing by states.
    (3) This will lead to situations of abuse, some outrageous headline events, general public outcry, etc.
    (4) With all the outcry, eventually Federal laws will be drafted which will include similar code nationally and would preempt some of the states’ codes. The end result will be that (like the mullahs in Pakistan) many conservatives in Arizona and elsewhere will get most of what they want not because they have the constitution on their side – but because they have overwhelming public support for their positions, irrespective of any hardships that may result for those who are affected by any unfairness which may exist. Sad, but not much one can do about it. :(

    (Posted by BJK)


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