Is SB1070 Constitutional?

In a recent article published in IMPRIMUS titled "The Constitution and Limited Government," Edward J. Erler, Professor of Political Science at California State University, San Bernardino, discusses why SB1070 is going to the Supreme Court.

It is not for the reasons that you constantly hear. SB1070 is not "racist." SB1070 does not give police the authority to detain someone simply based on suspicion that the person is in the country illegally.

Professor Erler states, "The law allowed police officers to verify the immigration status of any person after a valid stop or arrest if there ‘is a reasonable suspicion that the person is unlawfully present in the United States.’ Everyone remembers the hysteria that was unleashed when the bill passed. The President called the law irresponsible, saying that it threatened ‘basic notions of fairness.’ Others said the provision of the bill relying on ‘reasonable suspicion’ would mandate racial profiling; and some of the more hysterical commentators even insisted that the law was tantamount to genocide. The Assistant Secretary of State felt compelled to apologize to members of a Chinese delegation visiting the United States for this egregious assault upon human rights. One can only imagine the bemused looks on the faces of the Chinese delegation.

"The President ordered the Justice Department to intervene. And to the surprise of many, the Justice Department’s lawsuit did not seek to enjoin the law based on racial profiling or equal protection or due process, arguing instead that the law conflicted with the federal government’s exclusive power to regulate immigration. Perhaps someone had explained to the Attorney General that ‘reasonable suspicion’ has been a part of our due process jurisprudence for many years. It means that a police officer can question on suspicion that is less than probable cause; reasonable suspicion, of course, must be something more than a hunch or a guess or an intuition—it must be based on articulable facts.

"In addition, the Supreme Court in 1975 ruled that ethnicity could be one of the factors determining reasonable suspicion. The Arizona law, in contrast, disallowed any use of ethnicity in determining whether a person could be asked about his immigration status."

So, what is the real issue?

"…… The real question here—although it was not addressed by the District Court or the Court of Appeal—was what power, if any, devolves upon state governments when the federal government fails to carry out its obligations. The District Court had candidly noted that the Arizona law was passed ‘against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns.’

"In the face of federal inaction or manifest indifference, does Arizona have the reserved power—indeed the obligation—to secure the safety of its citizens? The President’s recent remarks that the border has been secured and that it is now time to think of providing a path to citizenship for illegal aliens is, in reality, a statement of declared indifference to the people of the State of Arizona and to all the border states similarly situated.

"Surely those states have the constitutional right, sustained by their police powers, to protect themselves through laws that are as unobtrusive as the Arizona law. But in the District Court’s judgment, the Arizona law invoked ‘an inference of preemption’ because it placed an ‘impermissible burden’ on federal ‘resources and priorities’ and inevitably ‘will result in the harassment of aliens.’

"The burden on federal resources stems from the fact that there will be an increased number of requests to verify immigration status. This increased burden will in turn force the immigration services to reallocate resources away from other priorities. Such is the logic of the District Court.

"These reasons seem trivial when compared to the real and pressing dangers that Arizona faces as a result of federal inaction and indifference. Surely this is not what the Framers had in mind when they crafted the supremacy clause, while at the same time reserving to the states the essential responsibility of protecting the safety and welfare of their citizens. Madison wrote in The Federalist that ‘the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.’ This extensive power reserved to the states should weigh heavily on preemption decisions.

"In this light, the Arizona law seems to have been a clear exercise of the state’s police powers, and any burden imposed on the federal government to have been incidental and insignificant."