Americans for Legal Immigration
May 15, 2010

A panel of three law professors discussing Arizona’s anti-illegal immigration law Thursday at UCSD concurred that the law could well pass constitutional muster, although violations could occur as police officers enforce it.

The measure was signed into law last month by Arizona Gov. Jan Brewer. Among other things, it empowers local police to check a person’s immigration status if there is reasonable suspicion the person is in the country illegally and forbids agencies from adopting so-called “sanctuary” policies that restrict officers’ enforcement of federal immigration laws.

Subjects = Illegal Immigration, Arizona anti-illegal immigration law, law constitutional, UCSD, country illegally

May 14, 2010
Leslie Berestein
San Diego Union-Tribune, LLC

It also makes it a state crime to knowingly harbor or transport an illegal immigrant, potentially opening family members to liability.

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After a recent lawsuit filed by a Tucson police officer, the law was slightly revised, strengthening restrictions against using race or ethnicity as a basis for questioning, and clarifying that questioning would occur if an officer stops someone in the course of enforcing other laws.

“I don’t see this as giving police more authority,” said Lawrence A. Alexander, one of three University of San Diego law professors on the panel. “I don’t see it on the face of the statute.”

However, panelists said, if a police officer unlawfully arrests or detains an individual, this could amount to a constitutional violation.

There remain concerns about racial profiling, even with the revisions, said Lilia Velasquez, an immigration attorney and adjunct professor at California Western School of Law in San Diego who attended the discussion.

“We have to not just concentrate on how it is facially constitutional,” Velasquez said, addressing the panelists. “But how is it going to be applied in Arizona, considering the state of mind?”

And unlike a U.S. citizen or legal resident arrested unlawfully, who can be released, it would be difficult to halt the removal from the country of someone apprehended during an unlawful stop, Velasquez said.

“Police will abuse authority from time to time,” Alexander said. “That is a fact of life, and it is regrettable.”

The law, partly written by University of Missouri law professor Kris Kobach, is drawn to closely mirror federal immigration law — and there lies the rub. Because immigration law is adjudicated by the federal government, the Arizona law could be pre-empted because federal law overrides state law, said Maimon Schwarzchild, another USD law professor on the panel.

“What the state is doing here is saying, ‘We will enforce the law, until you tell us not to,’ ” Schwarzchild said.

Kobach said the fact that it mirrors federal law is a good defense against a pre-emption claim. The law could more easily be defeated if it conflicted with federal law, he said.

“There is no conflict when the two laws are mirror images of one another,” Kobach said in a phone interview. “That is an important factor that will play in the judicial defense of this law.”

David Blair-Loy, legal director of the American Civil Liberties Union in San Diego, said state and local measures can be pre-empted on constitutional grounds. That was the basis of a legal challenge to a 2006 Escondido housing ordinance that would have punished landlords for renting to illegal immigrants.

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