May 19, 2010

Greta Van Susteren hosted the execrable Kris Kobach, co-author of Arizona's police-state immigration law, earlier this week to explain some of its deeper nuances -- for instance, what new powers does the law give to Arizona police?

Kobach, as is his wont, prevaricated:

Kobach: Well, this law is actually quite narrow in scope. The law basically says that police officers, when they are making a stop for some other violation of law, and they, in the course of that traffic stop would be typical, they develop a reasonable suspicion -- and that's a well-defined concept in the courts, as you know -- they develop reasonable suspicion that the person is an illegal alien, then they have to act on that suspicion and contact ICE, which has a hotline that's been in place for fifteen years, and they have to determine if the person is actually lawfully present in the country.

It also requires -- it makes it an Arizona misdemeanor to fail to carry the documents that a person is required to carry by federal law if the person is an alien. For the last seventy years, it's been a requirement of federal law that aliens in the United States register and carry certain documents with them. The Arizona law just says, if you're breaking this federal law, you're also committing a misdemeanor in Arizona.

But that leaves begging, of course, what happens when legal citizens are asked to produce proof of citizenship. Already, we have an ongoing problem with ICE accidentally (or otherwise) deporting American citizens -- and that's the agency where people are supposed to be specially trained to avoid such cases. When you have every rural deputy in Arizona enforcing federal immigration, well, it will be only a matter of time before the Kafkaesque qualities of this law become manifest.

But Van Susteren still wanted to know:

Van Susteren: I guess that's what's sort of curious -- what I don't quite get about the law is what authority that anyone gets from this law. In some ways it just seems like a way for the state of Arizona to engage the feds to finally come down and do something about their national immigration policy.

Kobach: Well, what it does is it requires officers not to turn a blind eye to that reasonable suspicion. It says, look, if you discover a situation where you've got a packed minivan, like they are alien smuggling --

Van Susteren: But yeah, that's like if you stop someone for speeding, and you go up to the car and you get a driver's license, you run the driver's license and you find out that the person is driving after revocation. You may not give a ticket for the driving -- the speeding, because it might have been a warning, but you're going to arrest the person for driving after revocation.

Kobach: Right. And in the example you gave, the person acted on the additional crime he found. Here, for example, the same as if he discovered drugs -- you wouldn't tell the officer, 'Turn a blind eye, pay no attention to the bag of marijuana on the passenger seat.'

Actually, there's a very simple and direct answer to Van Susteren's question: SB1070 puts local and state police officers in charge of enforcing civil violations of federal law. This is a clear usurpation of federal immigration authority, and one of the key reasons why the ACLU and other civil liberties organizations have sued to overturn the law -- namely, it "violates the Supremacy Clause of the Constitution by interfering with the federal government's authority to regulate and enforce immigration."

As this National Immigration Forum backgrounder [PDF file] explains, local police have traditionally stayed away from enforcing federal immigration for a number of reasons -- not the least of which is that it's an unneeded burden that frequently dilutes and interferes with their ability to combat real crime.

As to the enforcement of immigration laws, it has historically been the case that state and local police do not have the authority to enforce federal civil immigration laws. While state and local police have often worked with federal agents on criminal matters, they have generally steered clear of the enforcement of administrative/civil immigration laws.

Indeed, there is an important distinction between civil and criminal violations of immigration that comes into play here, as the NIF piece explains:

Immigration law is extremely complex, and is constantly changing. There are criminal and civil violations of immigration law. Civil violations include, for example, illegal presence and failure to depart after the expiration of a temporary visa. Criminal violations include illegal entry, re-entry after deportation, and failure to depart after an order of removal. To make matters more complicated, those in this last category are committing a criminal offense only if the government can show that they “willfully” failed to depart; but most removal orders are entered in absentia. If failure to depart is not “willful” (if, for example, the person was not aware that there was a removal order entered against them), the offense is a civil violation.

It's important to remember that unless people are caught in the actual act of crossing the border, and not merely found on a freeway crammed into a minivan, there is no criminal violation that any officer could suspect them of. The only violation likely to arouse suspicion would be a civil one.

Thus, as you can see, Kobach's and Van Susteren's analogy comparing someone suspected of being in the country illegally to someone pulled over with a bag of pot on the seat, or some other criminal violation, is all wrong.

A more apt analogy would be a situation in which a police officer approached a suspect for a drinking-and-driving violation and began to suspect that the same person was a tax cheat because he was a wealthy white Republican. Certainly, there are no shortage of those in Arizona.

If the Arizona law were applied similarly regarding all federal civil violations, well, the officer would be required to call the IRS and have that person audited.

Anyone wanna bet the Arizona Legislature won't be demanding that of their police officers anytime soon?

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