Friday, April 23, 2010
The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.
State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality. Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government. A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.
The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":
For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state 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.
The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.
Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both: "present on any public or private land in this state" and in violation of federal immigration statutes. The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."
The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).
The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof. MALDEF has issued a statement that it will challenge the statute. The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.