State Anti-Immigrant Legislation

Sports teams, bar associations, musicians, the Federal government and even local Arizona police departments are among the multitudes opposing SB 1070, the controversial immigration bill signed by Arizona Governor Jan Brewer on April 23, 2010. This anti-immigration legislation was passed by the Arizona state legislature and sponsored by State Senator Russell Pearce. The law, scheduled to go into effect July 28, 2010, gives police the authority to question an individual’s immigration status based upon a reasonable suspicion, while also allowing officers to avoid doing so if they determine that it would be impractical or would hinder another investigation.

Lacking proper immigration paperwork in Arizona will now be considered a misdemeanor. And in what appears to be an unprecedented enforcement mechanism, the act that makes it a crime to be an undocumented immigrant also allows anyone to sue a local, county or state agency if he or she believes the agency is not enforcing the immigration laws. These measures appear to have already had an effect on Arizona’s economy and will surely have a devastating impact on Arizona’s immigrant population as they lead to families being torn apart as well as loss of employment.

In response to criticism that the new law would lead to racial profiling, amended text was added prior to signing the bill stating that "prosecutors would not investigate complaints based on race, color or national origin." The new text further included provisions providing that police may only investigate immigration status incident to a "lawful stop, detention, or arrest,” that the original fine for violations would be lowered from a minimum of $500 to a maximum of $100, and that the maximum incarceration time for first offenders would be limited to 20 days instead of 6 months.

Arizona is the first state with such a fully draconian law. Some police officers fear the existence of the law will hinder investigations that may require immigrants’ assistance and could result in some crimes not being reported. Currently, Arizona police officers may question an individual’s immigration status only if the person is a suspect in another crime. U.S. Immigration and Customs Enforcement (ICE) agents have also expressed their concerns over their role in the law’s implementation. Several legal challenges over the law’s constitutionality and compliance with civil rights laws are expected. The Obama administration is directly reviewing its options as well.

Moreover, in spite of the outcry and controversy over its newest anti-immigrant law, Arizona is continuing to march ahead with yet another proposal that would deny birth certificates to the children of undocumented immigrants. According to state legislators supporting this new effort, the Constitution never intended to confer U.S. citizenship to undocumented immigrants and their children who are born in the U.S. Under federal immigration law, children born in the U.S. are conferred U.S. citizenship automatically. Should this law go into effect, we will undoubtedly see many challenges to its constitutionality. The question is whether such a law would violate the U.S. Constitution, given that the 14th Amendment states that "all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." For over one hundred and forty years, the 14^th amendment has cemented the federal government's control over citizenship. Now with Arizona’s proposed laws, we may very well be witnessing a crucial moment in the development of our country’s immigration laws and policies.