New York City Bar Report Finds Arizona Anti-Immigration Law Unconstitutional

Monday, August 2, 2010 - 01:00

On July 19, 2010, The New York City Bar issued a report stating the Arizona Anti-Immigration Act is unconstitutional on a number of grounds and should not be adopted by other states, according to a report released by the New York City Bar Association. The report, prepared by the Association's Committee on Immigration and Nationality Law, examines the principal provisions of the Act and finds that they are pre-empted by federal law and violate the First, Fourth and Fourteenth Amendments of the United States Constitution.

The report finds the Arizona law invades the exclusive province of the federal government to set foreign policy under Article 1, Section 8 of the Constitution. The Constitution grants the federal government the power to "establish a uniform Rule of Naturalization" and "to regulate Commerce with foreign Nations." These powers are necessary in order for the U.S. to function within the community of nations. Indeed, according to the report, if a state could regulate immigration, it "would have the authority to raise an international crisis through implementation of its own statutes without the corresponding responsibility to redress the resulting concerns in any meaningful way."

The report also finds that the federal government has pre-empted the field by establishing a comprehensive system of immigration regulation. The federal government's establishment of a system, together with "the national government's interest in promoting uniform laws in the immigration field," should negate Arizona's attempt to establish a parallel regulatory structure.

The federal pre-emption interest is more pronounced, according to the report, where a state seeks to regulate the civil enforcement of immigration laws. Here, Arizona's intent is clear. The statute requires agencies to enforce federal civil immigration laws, purports to regulate a substantial range of activity, including registration and employment of aliens, and "requires police agencies to treat administrative violations of the immigration law on the same level as serious felonies." However, that range of enforcement squarely conflicts with the responsibility of the federal government, as established by its vast regulatory system. Court decisions have made clear that, while there may be some role for states in the criminal enforcement of immigration law, only the federal government can engage in the civil enforcement of immigration. Arizona ignores that distinction and unconstitutionally overreaches its authority.

The report also addresses additional ways in which the Arizona statute violates the federal constitution and law by: exceeding the limits on state enforcement of civil immigration law set by the federal Anti-Terrorism and Effective Death Penalty Act of 1996; violating the Fourth Amendment prohibition against unreasonable stops; violating the Fourteenth Amendment Due Process requirements, as the terminology of the law is vague, including permitting stops based on "suspected" violations regarding documentation; violating the Fourteenth Amendment Equal Protection provisions by posing a serious risk that the law will discriminate on the basis of alienage, which the Supreme Court has said is "inherently suspect and subject to close judicial scrutiny"; and raising serious First Amendment concerns by risking a conflict with the federal harboring statute and conflicting with free speech protection provided to solicitation of work.

The report notes that defenders of the Arizona law point out the statute's language that race, color or national origin may not be considered in determining immigration status. However, according to the report, the risk of racial profiling is great: with the incorporation of failure to register or carry documentation into the state's criminal jurisdictional base, anyone appearing foreign can arguably be lawfully stopped and asked about his or her registration documents as a pretext for determining immigration status.

In addition, "the vagueness of the term 'suspected' documentary evidence raises particular concerns in light of Arizona's checkered history with respect to making pre-textual 'stops.'"