For decades, Americans and their political representatives have struggled to navigate a successful change to the country’s immigration policy. This brings us to the signing of Arizona SB 1070 and the subsequent swirl of emotion and accusation that ensued. Immediately, often without reading the law, critics characterized the legislation as misguided and irresponsible. President Obama expressed his concern, congressional leaders questioned motives, and suggestions of racism began to permeate the national discussion.
But, criticism from national leaders on the responsibility of Arizona’s law carries little weight. The responsibility for preserving and defending our country’s borders lies squarely with the federal government; however, there are an estimated 11.9 million illegal immigrants in the U.S. and 500,000 in Arizona, along with numerous occurrences of drug smuggling and human trafficking. The federal government’s irresponsibility in securing our borders is a major reason comprehensive immigration reform has not moved forward. People are skeptical. They are evaluating the issue and have determined that securing the borders comes first.
The Arizona law serves to make something that is already a federal offense, a state offense. Some critics fail to recognize that Arizona does have the right to assert concurrent jurisdiction. Section 287(g) of the Immigration and Nationality Act provides for a partnership between state/local governments and the federal government to enforce federal immigration policy, provided that proper training is administered. SB 1070 requires specific training for law enforcement and compels local officers to enforce laws mirroring federal law.
Critics of Governor Jan Brewer have claimed she simply caved to radical fringe groups. However, signing a law supported by a majority of individuals in their own state cannot be labeled as caving to fringe groups. She is actually caving to mainstream opinion. According to a poll conducted by Rasmussen Reports, 66% of Arizonans support the legislation.
Although it is true that a majority of people in Arizona support the law, this is not to say that popularity validates law or protects it from judicial review. There are instances when the Constitution trumps the majority preference. Judicial review is an essential and accepted part of our functioning democracy. Case by case refinement of law helps clarify and evolve the interpretation of ambiguous language. A major criticism of the Arizona law is the use of undefined phrases within the law and how to interpret such language. The law states that police officers must make a “reasonable attempt” to determine the status of a person where “reasonable suspicion exists” they are here illegally. Although the use of the word "reasonable" is vague, the vagueness of the language is insufficient to label the law unconstitutional. An example of case by case redefining and vague wording can be found in the Bill of Rights. The Fourth Amendment to the United States Constitution provides for protection from “unreasonable searches and seizures”; however, case law has continuously defined and evolved our interpretation of the word "reasonable."
Other critics argue that Arizona is in violation of the 14th Amendment (the Equal Protection clause) prohibiting the government from basing action on the basis of race. But this argument is not a strong one. Groups critical of the law often support and promote the use of racial set-asides in government contracting, racial preferences in college admissions, racial gerrymandering, and other aspects of society. With respect to racial profiling, the law specifically prohibits it, and police officers routinely make judgments with respect to probable cause and reasonable suspicion. Therefore, invalidating the Arizona law solely on the fear of racial profiling stems only from a different form of profiling -- job profiling of police officers. Insisting that racial profiling is unavoidable suggests that all police officers are insensitive and incapable of performing their jobs correctly.
Hispanic Americans have lived in Arizona with the state’s other citizens for decades with few problems. However, the citizens of Arizona and other border states possess a unique perspective on illegal immigration. Most of us see immigrants as hard workers that are trying to provide a better life for themselves and their families. Our perspective does not consist of first hand accounts, lost loved ones, or millions in lost tax dollars. The issue has everything to do with experience, and little to do with race. If illegal immigrants from Canada smuggled large amounts of drugs into Detroit, trespassed, and smuggled humans through backyards, the citizens of Michigan might react in a similar manner. Who are we to judge Arizona?
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