Friday, April 30, 2010

Constitutional challenges to the immigration bill

Several lawsuits have been filed against the Arizona immigration law. two Constitutional claims arise amidst these challenges: a weak equal protection challenge and a stronger preemption challenge. I'll start with the equal protection challenge.

One of the most criticized clause of the bills is the command in Section II that law enforcement officials must verify a person's immigration status when the officer reasonably suspects "that the person is an alien who is unlawfully present in the United States." The law bars law enforcement from relying on illegal factors such as race, color, or ethnicity; but how many white guys are they going to pull over trying to thwart massive Canadian invasion of Arizona? Although the law prohibits racial profiling, you wonder unless the individual confesses that they are from another country how they would "reasonably suspect" they were unlawful occupants.

Under current law, a discriminatory effect is not sufficient for an equal protection claim. One must prove that the law has discriminatory intent. This might be tricky. It is hard to say on the face of the law that it is specifically directed towards racial minorities. It does have that provision prohibiting racial profiling. However, the argument can be made that without real guidance on what one should be suspicious of, it tacitly condones racial profiling. Unfortunately, I don't think this is a winning argument. It would strike down an awful lot of immigration laws because most tacitly discriminate against minorities.

The second claim is the preemption claim. The argument is that the Constitution vest all immigration and naturalization rulemaking in the hands of Congress. Due to the Supremacy Clause--that the Constitutional laws are the supreme laws of the land, the federal laws supersede any state laws.

University of Missouri-Kansas City law professor and author of the bill Kris Kobach rejects this argument. He argues that the bill is an enforcement bill--that it doesn't create any new legal standards, the role of Congress, but rather empowers Arizona law officials to enforce Congress' standards. Apparently this strategy has worked with other immigration bills that he has worked on.

Professor Erwin Chemerinsky, author of everybody's favorite con law book, contends that there is still a preemption violation with the Executive. Preemption analysis for enforcement of bills generally remains in the federal government unless Congress expressly says otherwise. I am not too familiar with the immigration code, but I have not heard of Congress delegating the responsibilities to the States. Assuming this is so, there is a decent chance that the federal government has a case. Courts never like to strike down laws and a conservative Court may be leery of violating state sovereignty, but that violation is at the root of preemption analysis and at the heart of the our Constitutional government.

Here's to hoping that one of these works!

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