Friday, April 30, 2010
We want our students to develop critical thinking, and one way for them to do this is to ferret out first-hand, primary sources for all sides of a controversial issue. The recent flurry of opinions and emotions regarding the new Arizona state law seeking to curb illegal immigration in that state provides a great example of how technology can help both us, as well as our students, hone our critical thinking skills.
Frustrated by the rhetoric (both for and against) that has recently flooded the airways regarding Arizona’s "Support Our Law Enforcement and Safe Neighborhoods Act", also known as S.B. 1070, I decided to go online to read the bill for myself before forming a personal opinion. I was surprised to find out that this 16-page document was fairly easy to understand. I then searched online for recent newspaper articles to find out what has actually been stated regarding the bill. Here’s what I found.
An article posted online by the San Francisco examiner.com, on 4/29/10 reported, “The American Civil Liberties Union (ACLU) of Arizona, the Mexican American Legal Defense and Educational Fund (MALDEF) and the National Immigration Law Center, are planning to file a joint suit to also challenge the new law signed by Gov. Jan Brewer Friday, arguing the law is unconstitutional.”
On April 21, the San Francisco examiner.com quoted the U.S. Secretary of Labor Hilda Solis as saying, “We need immigration reform, because now each state might want to change laws.” The article also stated that Solis said state officials have “no power” to promote initiatives that would enable them to enforce immigration laws, because that is the federal government’s responsibility.
The New York Times and KTAR.com in Phoenix, AZ (4/23/10) reported that Obama called the Arizona bill “misguided”, and instructed the Justice Department to examine it to see if was legal. Obama said that the federal government must enact immigration reform, otherwise it leaves the door open to “irresponsibility by others,” including, for example, “the recent efforts in Arizona, which threaten to undermine basic notions of fairness…”
Finally, ABC News White House Correspondence Jake Tapper reported that on April 27, President Obama told people at a town hall meeting in Iowa, “This law that just passed in Arizona [which I think] is a poorly conceived law.” Obama believes it will lead to racial profiling. “Now, suddenly, if you don’t have your papers ... you’re going to be harassed,” the president said.
I decided to examine the text of the bill more closely to find out why some call it unconstitutional. Is it, in fact, taking on powers that do not belong to the states? Will it unfairly demand aliens to carry their documents with them, and allow police to engage in racial profiling? Here’s what I found out by examining the text of the bill.
Sec. 6. Section 23-212 of the bill states, “A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 United States Code section 1373(c).” I found no evidence in the bill that it will usurp federal authority, or violate the U.S. Constitution. In fact, Kris Kobach, a law professor at the University of Missouri at Kansas City, explains, “The Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law.”
Sec. 3. Section 13-1509 of the bill states that if someone is found to be an illegal alien, they are guilty of a misdemeanor crime of trespassing in the State of Arizona. If they are in violation of federal law due to their illegal status, and in possession of dangerous drugs, deadly weapons, or property used for the purpose of committing an act of terrorism, they are guilty of a felony, under the State laws of Arizona. This section appears to fall within the scope of the 1976 Supreme Court ruling.
Another law this bill enacts is to make it a misdemeanor if an alien fails to carry certain documents. Sec. 2, Article 8, Section 11-1051 E states, “A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States” (such as being an illegal alien).
If an officer has probable cause to suspect that a person is in the country illegally, this bill gives the officer the right to ask the person for documentation showing that he or she is here legally. If such documentation cannot be presented, the officer can arrest the person and contact federal authorities to ascertain the person’s legal status. This appears to be the section of the bill that stirs up fears of racial profiling, and is perhaps the section that prompted Obama’s statement, “Now, suddenly, if you don’t have your papers ... you’re going to be harassed.” However, part J of this section states, “This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” And Section 2 B specifically states, “A law enforcement official…may not consider solely consider race, color or national origin in implementing the requirements of this subsection.”
According to current federal law, this Arizona state law requiring aliens to carry documentation is not a new or unfair law. U.S. Code Title 8, section 1304 part (e) states, “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.” This federal law has been in effect since 1940. The Arizona law simply adds a state penalty to what was already a federal crime.
In light of this evidence, the only portions of Arizona’s law that I might question are the meanings for the phrase, probable cause in Sec. 2, Article 8, Section 11-1051 E, and reasonable suspicion, as used in Sec. 2, 11-1051 A. Section 11-1051 E says, “A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.” In 11-1051 A it says, “For any lawful contact made by a law enforcement official…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.”
What one officer determines is probable cause or reasonable suspicion may not appear to be so to another officer. However, I discovered that there are specific, legal standards for these terms. If an officer claims that his actions are based on probable cause, the official must be able to prove that his or her interpretation is based on specific facts and inferences. Proof of probable cause for an officer to arrest a person under suspicion of illegal alien status would have to be the absence of legal documentation, as referenced above. I also learned that the legal standards for determining probable cause are even stronger than the standards for reasonable suspicion. Reasonable suspicion must meet the legal standard in United States law that a person has been, is, or is about to be engaged in criminal activity based on "specific and articulable facts and inferences", according to Terry v. Ohio, 392 U.S. 1 (1968). An arresting officer cannot lawfully make contact with a suspected criminal, for example, just because of a person has an accent or a certain skin color. The officer can only make lawful contact based on specific facts that the officer can articulate or infer.
The emotional ranting that I have heard on both sides of the issue appear to stem from “what if”, or “this could happen if” scenarios. Based on available legal information, Arizona legislators seem well within their states’ rights to enact and uphold the legislation of S.B. 1070.