Is Arizona’s Trespassing Law Against Immigrants Unconstitutional?

Reporting from Phoenix.

The state legislature of Arizona is poised to pass a bill that makes the presence of an undocumented immigrant anywhere in the state illegal. Many experts believe this is an unconstitutional measure aimed at appeasing angry conservative voters in the 2010 elections.

Arizona is ground zero for the debate about immigration policy in America, and you can feel it. Nowhere is the atmosphere more charged and polarized between those pushing for harsher laws and reformers. Nowhere is there a more heightened sense of the demographic changes taking place in the country, and more sharp views about it either way.

The dominant political apparatus in Arizona is currently conservative, but many in the Tea Party movement are attacking the incumbents from the right for not being ‘conservative enough’ on many issues, first and foremost immigration. This is ironic, because the original Tea Parties were grassroots libertarian events, and the official Libertarian Party platform clearly states their stance on an open border policy. Ever since the traditional conservatives rolled their astroturf over this fledgling movement and took it over, the rhetoric has become harsher and harsher against immigration, possibly explaining why there are so few latinos in attendance. Regardless, the ground campaign of the Tea Parties has re-energized anti-immigration forces to push politicians from the right.

The Arizona senate recently passed bill 1070, sponsored by Sen. Russell Pearce (R-Mesa). The bill has a few provisions.

-It outlaws the hiring of day laborers off the street
-Prohibits anyone from knowingly transporting an undocumented immigrant
-Forces police to check the residency status of people they suspect are in the country illegally

House bill 2632, which was sponsored by Rep. David Gowan (R-Sierra Vista) is identical, and has just passed the State House committee and is ready for a vote on the floor, likely on Tuesday. It could possibly be signed by Governor Jan Brewer the same day.

The Arizona Republic reports, “Although lawmakers face a slew of illegal-immigration-related bills, this measure has raised an outcry. Opponents say it will waste law-enforcement resources, drive away taxpaying immigrants needed to fill jobs and force everyone to carry proof of citizenship to avoid arrest.” It continues, “The ACLU says the trespassing portion of the bill unconstitutionally usurps the powers of the federal government by allowing the state to regulate immigration. The group says no other state or municipality in the nation makes unlawful presence a crime.”

The New York Times adds, “Several police chiefs and sheriffs have criticized the bill, calling it burdensome and impractical and a tactic that will scare immigrants out of cooperating with investigations and reporting crime.” With an estimated 460,000 undocumented immigrants in Arizona, one can understand why this would stretch law enforcement budgets.

There was a similar case to this in New Hampshire in 2005. Police chiefs in 2 towns began to investigate the legal status of Latinos staying in or passing through the towns where they worked, and charging those without proper documentation of trespassing.

Justice L. Phillips Runyon III of the Jaffrey District Court, ruled the measures violated the constitutional protections of the immigrants. He said in his ruling “The criminal charges against the defendants are unconstitutional attempts to regulate in the area of enforcement of immigration violations, an area where Congress must be deemed to have regulated with such civil sanctions and criminal penalties as it feels are sufficient.”

Despite being crafted with language specifically meant to avoid this precedent, the Trespassing Bill of Arizona will likely have the same fate, and and up being more of a measure to garner votes from conservatives.

America does not have two sets of laws, one for citizens and one for non-citizens. People from around the world, whether or not they have illegally overstayed their visas, are protected by our laws when they are in our land. This includes the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What would give law enforcement officials the probably cause they would need to suspect someone of being an illegal immigrant? They would either need to racially profile, because Latinos make up the vast majority of immigrants during this recent wave into America, or they would need to check everyone. Either way, the bill appears to be in direct conflict with our protection against unreasonable searches and seizures guaranteed by the Fourth Amendment.

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