I Support the Judge's Decision in the AZ Immigration Law Case

Yes, I support the Judge's decision in the AZ immigration law case. This does not mean that I liked the decision, nor does it mean I fully understand the decision, nor does it mean I agree with the decision, nor does it mean I do not still support the AZ immigration law. It only means I respect the judge's decision and I will stand by the decision.

We are a nation of laws meant to shape a free and ordered society such that we all can live as we see fit without intruding into the domain of others. The only way for this to occur is to have respect for the laws which are passed. We might not all agree or like the law but we must obey the law. If we don't like a law, we can work to change it. Sometimes judgments made by those who have a veto power over the law might rise our ire but a response of defiance cannot be tolerated if we desire for the other laws to maintain our free and ordered society. Right or wrong, the judge's decision is the judge's decision and we must abide by it.

With that said, I shall now do something which might seem odd. I will argue that part of the AZ is unconstitutional - but not utilizing the weak Department of Justice argument that the law tramples on federal responsibilities. Just realize, I do not actually know what was argued or what actually was stated in the decision besides what I've heard from the talking heads. I am going to argue a provision of the statute unconstitutional based on some new knowledge I've gained about our governmental system.

The portion I shall argue unconstitutional is the portion which requires officials during a legal stop with reasonable suspicion that the person involved in the legal stop is an illegal alien to inquire about immigration status. One of the requirements missing from this provision is what law officers are supposed to do once they come across someone who meets this condition. The intent is for the law officer to arrest the suspected illegal alien. Now this would apply to anyone who could not prove they are a legal alien or citizen. How long does this process take? This is where the law begins to stretch from constitutionality into unconstitutionality.

Hypothetical situation: Individual stopped for speeding. His English is not the best in the world. He is very nervous and lapses back into his native language. The police officer asks for his driver license and registration. Unfortunately, the driver forgot his wallet thus does not have proof of who he is. The name on the registration is his name but it's a common foreign name. The nervousness coupled with the broken English and the lack of a driver's license raises the suspicion of the officer. Is this guy an illegal alien or is he legal? What should he do? He radios back to the precinct but the name provided is inconclusive due to similarity with other names. The officer now arrests the man on suspicion of being an illegal alien due to lack of documentation. The problem is that the man has lived in this country for six years and has been a US citizen for the past one year. Is this a problem?

When considering the constitutionality of a law, the court looks at the intent of the law to see if affects a right. If it does, there are several tests which can be applied to verify the law's constitutionality. When rights dealing with life or liberty arises, the court will ask if the right involved is a fundamental right. In this case, detaining someone falls into the fundamental right category of liberty. Now liberty can be taken away with Due Process of Law but the law must provide Equal Protection of the law. This is where the immigration law begins to fall apart.

In Planned Parenthood of Pennsylvania v. Casey (505 U.S. 833, 894), Justice Sandra Day O'Conner states, "The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." In the AZ immigration law there are several groups for whom the law is irrelevant. Among these are legal citizens carrying legal identification, legal immigrants or other foreigners with legal and proper identification, and even illegal immigrants. The law becomes a restriction upon those who are legal citizens who by their look and their speech might lead one to believe they are not legal citizens who do not have identification upon their person. This class of people is the class we are concerned with in this discussion.

To look at this another way: two people are stopped for speeding: One who is white without a driver's license and one who is Oriental without a driver's license. What happens in each case? Without the AZ law, both are cited for not speeding and for not having a license. With the AZ law, the Oriental person, based on circumstances, could be detained longer than the white to verify immigration. How long that detainment lasts depends on the speed of the system in verification of the person's immigration status. Thus the Oriental's liberty is being denied, not necessarily without Due Process of Law, but based on not being Equal Protection of the Law.

To pass the Equal Protection Clause, the law must be "applicable equally to all in like condition," Justice Oliver Wendell Holmes, Jacobsen v. Massachusetts (197 U.S. 11, 30). In the above scenario, two separate people are being treated differently. The reason they are being treated differently is because of certain traits associated with that person: race, color, nationality. When these traits become evident, this invokes the "strict scrutiny" test for constitutionality.

Under strict scrutiny, the State must prove that the intent of the law fulfills a "compelling state interest" and that the law is "narrowly drawn to satisfy this compelling interest." It is a valid state interest to ensure illegal immigrants are not in the state. It is a compelling state interest to remove said illegal immigrants from the state, especially if some of those immigrants are committing crimes against the populous of the state. The question then is the law "narrowly drawn" to satisfy this interest?

One only has to look to Skinner v. Oklahoma (316 U.S. 535) for the answer. In this case, thrice convicted felons were subject to sterilization because, at that time, it was believed criminal traits could be inherited from the parents. The problem with the law is that those subject to sterilization were "blue collar" criminals and not "white collar" criminals. Thus someone stealing $50 in a robbery three times was subject to the law while someone who embezzled $50 a hundred times was not. Why was this significant? Blacks committed most blue collar crimes while whites committed most white collar crimes. Thus Justice Douglas stated, "it has made as invidious discrimination as if it has selected a particular race or nationality for oppressive treatment." Thus the sterilization law was declared unconstitutional for failing substantive due process.

The AZ law is not narrowly drawn to protect the liberty of a legal US citizen such that they will not be detained any longer than another US citizen who is of a different race or national origin. Much like Skinner, a discrimination of national origin is subjecting a class of persons to oppressive treatment in a violation of the Equal Protection Clause. This means the law has stretched its umbrella of illegality over a legal action. Since the legal action is related to liberty - a fundamental right - the law must be declared unconstitutional.

The counter argument to this, which is made during many Supreme Court decisions, is that the number of people who would actually be denied liberty unjustly would be so small that it is unwarranted to declare the law unconstitutional. The problem with this argument though is our criminal system is based on the belief it is better to let a murderer go free to kill again than for the state to imprison an innocent person. Both are egregious actions, but the removal of freedom by state power outweighs the egregious nature of killing. We must stand by this principle even when our morals are assaulted.

I still agree with the AZ immigration law as written. However, I respect and stand by the judge's decision.

Mike

References:

Supreme Court Media: http://www.oyez.org/