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In the past few years, the Arizona legislature, frustrated by the federal government's inexcusable inaction on immigration, has passed two major laws aimed at undocumented immigrants. Each of these laws is being litigated in the federal courts. The outcome of this litigation will necessarily affect other states' ability to enact and enforce similar laws. More broadly, the issues involved in the Arizona litigation will have implications for recent attacks on the 14th Amendments' provision for birthright citizenship in the United States.
The first of the Arizona laws, Ariz. Rev. Stat. 24-312, penalizes employers for knowingly employing unauthorized individuals by refusing to issue, or revoking, business licenses. The case has had several names as it passed through the system, but is now before the U.S. Supreme Court sub nom Chamber of Commerce v. Whiting, Supreme Court No. 09-115. Oral argument was held on December 8, 2010.
One of the main issues in this case is preemption. During the oral argument, the justices seemed sympathetic to Arizona. Although the Immigration Reform and Control Act reserves regulation of immigration to the federal government, there is a savings clause specifically allowing an exception for states' licensing activities.
The justices did not seem as sympathetic to the law's requirement that all Arizona businesses use E-Verify, an online system for verifying employment eligibility, because Congress specifically made this program voluntary, with narrow exceptions. A decision is forthcoming this spring.
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The second Arizona law is S.B. 1070 as amended by H.B. 2162., which requires officers to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully in the United States. In an attempt to make the law "politically correct," the amendment in H.B. 2162 took out the word "solely" from the phrase "a law enforcement official . . . may not solely consider race, color or national origin in implementing the requirements of this subsection . . . " However, the law does not explain what factors a law enforcement official should consider in forming the required reasonable suspicion, nor does the law contain guidance that would make it more likely for a law enforcement official to investigate an undocumented Canadian citizen than a US citizen of Mexican origin.
S.B. 1070 creates several state crimes, among them "stopping on a street to attempt to hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic."
S.B. 1070 was partially blocked by motion for summary judgment in two complementary cases, United States v. Arizona, No. CV 10-1413-PHX-SRB and Friendly House v. Whiting, No. CV 10-1061-PHX-SRB, both currently before the USDC, D. Arizona.
A vital issue in Friendly House v. Whiting was standing. In this class action, many of the plaintiffs were people who feared that enforcement of S.B. 1070 would have a chilling effect on their First Amendment rights, as speaking with a foreign accent may lead to reasonable suspicion of alienage, with dire consequences. The trial court dismissed many of these claims, but indicated that the plaintiffs may indeed be able to raise future claims, on an "as-applied" basis. However, there were several institutional plaintiffs, mostly non-profit groups that aid immigrants. These plaintiffs' claims, that they were being unnecessarily burdened by people fearful of the new law, even before its implementation, were found to be ripe for review.
Contrary to the first of Arizona's laws, here the District Court found that a significant portion of S.B.1070 was probably preempted by the federal government's mandate to regulate immigration. The trial judge indicated, among other concerns, that the United States' international relations would be harmed absent a uniform system of regulating immigration.
In addition, the trial court found that the prohibition against blocking traffic was probably not a content-neutral restriction on First Amendment activity, and blocked enforcement of this provision pending the full trial.
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The issue of preemption will be arising frequently, as more and more states attempt to regulate immigration in the face of the federal government's inaction. In particular, several state attorneys general are working to write legislation that will create two classes of children at birth; those born to people legally in the United States, and others, who, although United States citizens under the 14th Amendment, would not be considered citizens of their state of birth.
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 and of the State where they reside."
The states' attempts to regulate immigration are based on an interpretation of "subject to the jurisdiction thereof" that excludes those in the United States without proper documents. These efforts are being mirrored by Rep. Steve King (R, Iowa), who has introduced a bill that would "amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth." Of course, this proposed federal legislation cannot be challenged on the basis of preemption. Instead, it would require a re-interpretation of the 14th Amendment.
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The issues raised in the Arizona laws, as well as the planned attacks on the 140 year old interpretation of the 14th Amendment, are likely to touch everyone in the United States.