“Suiting Up” Against the Constitutionality of Arizona’s Enforcement Law

Before Arizona Governor Jan Brewer ever put pen to paper to sign SB 1070, immigration rights advocates were preparing challenges to the law. Various members of the administration have hinted that the Arizona law may face a federal challenge—Attorney General Eric Holder stated that the Department of Justice is reviewing the law for a possible suit, and DHS Secretary Janet Napolitano echoed this in a hearing last week, stating that she had “deep concerns” with the law. Even President Obama has admitted that the law threatens to “undermine the basic notions of fairness.”

Immigrants Rights Groups have already followed suit. MALDEF, the ACLU, and NILC announced their legal challenge to SB 1070 last week. MALDEF President and General Counsel Thomas A. Saenz stated that “the Arizona community can be assured that a vigorous and sophisticated legal challenge will be mounted, in advance of SB 1070’s implementation, seeking to prevent this unconstitutional and discriminatory law from ever taking effect.” A preliminary analysis by the ACLU also found it unlikely that the law would be upheld.

The American Immigration Council’s Legal Action Center is keeping track of the legal challenges to SB 1070 that have been filed. One suit was filed by Officer Martin Escobar, a member of the City of Tucson Police Department. Escobar asserts that in his law enforcement experience there are no race neutral criteria to suspect or identify who is lawfully in the U.S., including proximity to the border, racial, linguistic, and physical characteristics, clothing, Spanish-language radio or television preference, type of vehicle, and use of public transportation. Because there are no race neutral criteria to identify whether an individual is lawfully present in the U.S., Escobar asserts that SB 1070 violates the due process clause, the Supremacy Clause, and the First Amendment to the U.S. Constitution. Escobar also points out that having Arizona law enforcement officers routinely question Hispanics about their immigration status would seriously impede more serious law enforcement investigations.

A second suit was filed as a class action by a group of Plaintiffs in Arizona—including non-profit Conclamic Arizona, an organization of 30,000 affiliated churches and a membership of 300 pastors. They were joined in the class action by U.S. citizens, lawful permanent residents, and other plaintiffs. The suit alleges similar violations to the one filed by Officer Escobar—violations of due process, the Supremacy Clause, and the First Amendment. In addition, a group of law professors came together to sign onto a letter stating their belief that the law is unconstitutional.

Beyond being fiscally unwise and just plain bad policy, the Arizona law is likely to face a litany of legal challenges before it’s even enforced. While the unconstitutionality of the law is yet to be proven, this litany of lawsuits that are sure to continue should at least give pause to the Arizona legislature and Governor Jan Brewer, as well as other states considering similar legislation.

Photo by Unhindered by Talent


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  • Benito

    I hope that every American, regardless of where he lives, will stop and examine his conscience about this and other related incidents. This Nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened. All of us ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated, but this is not the case.

    I know the proponents of this law say that the majority approves of this law, but the majority is not always right. Would women or non-whites have the vote if we listen to the majority of the day, would the non-whites have equal rights (and equal access to churches, restaurants, hotels, retail stores, schools, colleges and yes water fountains) if we listen to the majority of the day? We all know the answer, a resounding, NO!

    Today we are committed to a worldwide struggle to promote and protect the rights of all who wish to be free. In a time of domestic crisis men of good will and generosity should be able to unite regardless of party or politics and do what is right, not what is just popular with the majority. Some men comprehend discrimination by never have experiencing it in their lives, but the majority will only understand after it happens to them.

  • Benito

    “All Men are created equal”! The founders had it right, when attempting to form a perfect union and they also knew that they were not there yet but knew we one day would get there. Lincoln moved us forward as did JFK and LBJ. This Nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened.

    It is my contention that this AZ law is not constitutional and will fail when challenged (unless they add more amendments), pretty funny for this so called perfect law.