Arizona's SB 1070 Faces Legal Challenges
By Lucy Rodriguez
The recent and very controversial Arizona legislation SB1070, approved in April by the Arizona legislature and signed by the governor despite wide protests, has already cost the state of Arizona hundreds of thousands of dollars in revenues from cancelled professional meetings and economic boycotts. It is unlikely to survive constitutional challenges. A complaint has recently been filed by the ACLU and other NGOs challenging its constitutionality, even before it goes into effect.
The U.S. Constitution Article VI, Section 2, the Supremacy clause, states that federal law preempts state law in areas over which Congress has expressly or impliedly reserved authority or which is constitutionally reserved to the federal government. The Supreme Court has held that the Federal government power to control immigration is inherent in the nation’s sovereignty. In addition, implementing SB1070 would place a heavy burden on citizens and legal residents who would have to prove their legal status whenever challenged.
The Fourteenth Amendment of the provides that “no State shall… deny to any person within its jurisdiction the equal protection of the laws”. SB 1070 requires that the police stop anyone who they may “reasonably suspect” to be undocumented. How the police are to make this determination is not specified. It seems the police would have to decide on appearance alone. Thus a person who “looks foreign”, though they may be a citizen, could be suspect and thus face detention and arrest until she can prove that she is a citizens or legally in the country. It seems unavoidable that racial profiling would become common practice despite being unconstitutional.
The Fourth Amendment prohibits unreasonable searches and seizures. SB 1070 requires that police officers conduct warrantless searches and seizure of individuals without probable cause that a crime has been committed. A citizen with a heavy accent may have his vehicle searched if the police have stopped him because he forgot his license. Again, this is a heavy burden on both the populace and on law enforcement agencies.
Furthermore, SB 1070 represents a violation of international human rights law. As explained by ACLU attorney Chandra Bhatnagar, the U.S. is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination. Any racial profiling, of the sort that already occurs in many states but would certainly be exacerbated by implementation of SB 1070 in Arizona, puts the U.S. in a difficult position with respect to international law in general and particularly for human rights issues.
For these reasons, SB 1070 has aroused considerable protest and concern in the immigration and international law communities as well as among immigrants. Immigrant rights groups are organizing around these issues to put pressure on legislators, including urging comprehensive immigration reform by Congress.
To get involved with the campaign against SB1070, visit www.altoarizona.com.
Lucy Rodriguez is an attorney specializing in Immigration Law, a member of the National Layers Guild, and MCLI Board member.