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

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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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