Extremely Unconstitutional

You know a law is bad news when even the police don’t want to enforce it. Officer Martin Escobar, a 15-year veteran of the Tucson police force, has filed suit in federal court, seeking to be exempted from enforcing Arizona’s new immigration law. Escobar, who has spent his law enforcement career working with Tucson’s heavily Latino population, believes the law is the product of racial bias aimed specifically at Hispanics.

He’s right. But Escobar’s stance puts him in direct opposition to Arizona Governor Jan Brewer. It was Brewer, frustrated by federal inaction and an impasse in Congress over immigration reform, who recently signed the controversial law. It gives state and local police broad powers to investigate suspected illegal immigrants.

As long as they have a “reasonable suspicion” that someone is undocumented, police may ask for proof of citizenship or legal residency. It’s now illegal in Arizona to give a ride to an undocumented immigrant–even a relative. Ditto for having someone who lacks papers over for dinner. That, too, is now a misdemeanor.

Does this sound extreme? It is extreme, not to mention unconstitutional. Article 1 of the Constitution specifically assigns the federal government, not the states, the power to set immigration policy. Our Founding Fathers foresaw the dangers of a balkanized immigration policy, and wisely delegated this responsibility to Congress. Arizona’s new law also seems to violate the Fourth Amendment, guaranteeing protection from unreasonable search and seizure, as well as the Equal Protection clause of the 14th Amendment.

As a Latino, I am of course concerned that in Arizona, local and state authorities will harass and discriminate against Hispanics with impunity. The law offers no guidance as to what constitutes a “reasonable suspicion” that someone is an illegal immigrant. It’s not farfetched to imagine that the police will resort to factors like the color of someone’s skin, their accent, or what language they’re speaking. This is racial profiling, and it is illegal in the United States of America. Consider that Hispanics who go out jogging in Tucson will now have to remember to bring I.D.–or risk detention or deportation.

Although Governor Brewer later signed additional legislation specifically prohibiting racial profiling, Arizona’s disregard for civil liberties remains troubling. State police officers can still stop people and demand to see their “papers”–actions more reflective of a police state than the Grand Canyon State.

The law gives police wide discretion to determine whether a person’s documents are sufficient to establish legal status. Unlike federal officials, however, local police do not receive specialized training in immigration law. Now Arizona is charging cops with making on-the-spot decisions that may involve issues like H1B visas (which enable foreign professionals to work in the United States for a limited period of time) and issues involving economic or political refugees, such as Temporary Protected Status and asylum. No wonder the Arizona Association of Chiefs of Police didn’t support this law. They warned that it would divert their resources from fighting violent crime, and sow mistrust among the Latino and immigrant communities.

So far, it has been heartening to see the groundswell of opposition to this new measure. Besides Officer Escobar, everyone from pop star Shakira to the Mayor of Phoenix to President Obama has spoken out against this overreaching, misguided law.

Arizona’s new law won’t solve its immigration problems. It won’t make the border safer, or significantly protect the lives and property of law-abiding citizens. What it will do is stigmatize Latinos in their own communities. It will lead to numerous lawsuits, to be paid for by Arizona taxpayers, at a time when the state recently enacted the steepest budget cuts in its history.

I well understand that Arizona is paying an enormous cost for our country’s failed immigration policy. But I agree with Officer Escobar. This new law is poor public policy. It is bad for Arizona. Most of all, it infringes upon one of the foundations of American democracy–the ideal of liberty and justice for all.

Raul A. Reyes is an attorney and columnist in New York City.