4/26/2010 – by Byron York –
The chattering class is aghast at Arizona’s new immigration law. “Harkens back to apartheid,” says the Atlanta Journal-Constitution’s Cynthia Tucker. “Shameful,” says the Washington Post’s E.J. Dionne. “Terrible…an invitation to abuse,” says the New York Times’ David Brooks.
For his part, President Obama calls the law “misguided” and says it “threaten[s] to undermine basic notions of fairness that we cherish as Americans.” Obama has ordered the Justice Department to “closely monitor the situation and examine the civil rights and other implications of this legislation.
Has anyone actually read the law? Contrary to the talk, it is a reasonable, limited, carefully-crafted measure designed to help law enforcement deal with a serious problem in Arizona. Its authors anticipated criticism and went to great lengths to make sure it is constitutional and will hold up in court. It is the criticism of the law that is over the top, not the law itself.
The law requires police to check with federal authorities on a person’s immigration status, if officers have stopped that person for some legitimate reason and come to suspect that he or she might be in the U.S. illegally. The heart of the law is this provision: “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…”
Critics have focused on the term “reasonable suspicion” to suggest that the law would give police the power to pick anyone out of a crowd for any reason and force them to prove they are in the U.S. legally. Some foresee mass civil rights violations targeting Hispanics.
What fewer people have noticed is the phrase “lawful contact,” which defines what must be going on before police even think about checking immigration status. “That means the officer is already engaged in some detention of an individual because he’s violated some other law,” says Kris Kobach, a University of Missouri Kansas City Law School professor who helped draft the measure. “The most likely context where this law would come into play is a traffic stop.”
As far as “reasonable suspicion” is concerned, there is a great deal of case law dealing with the idea, but in immigration matters, it means a combination of circumstances that, taken together, cause the officer to suspect lawbreaking. It’s not race — Arizona’s new law specifically says race and ethnicity cannot be the sole factors in determining a reasonable suspicion.
For example: “Arizona already has a state law on human smuggling,” says Kobach. “An officer stops a group of people in a car that is speeding. The car is overloaded. Nobody had identification. The driver acts evasively. They are on a known smuggling corridor.” That is a not uncommon occurrence in Arizona, and any officer would reasonably suspect that the people in the car were illegal. Under the new law, the officer would get in touch with U.S. Immigration and Customs Enforcement to check on their status.
But what if the driver of the car had shown the officer his driver’s license? The law clearly says that if someone produces a valid Arizona driver’s license, or other state-issued identification, they are presumed to be here legally. There’s no reasonable suspicion.
Is having to produce a driver’s license too burdensome? These days, natural-born U.S. citizens, and everybody else, too, are required to show a driver’s license to get on an airplane, to check into a hotel, even to purchase some over-the-counter allergy medicines. If it’s a burden, it’s a burden on everyone.
