Taking Action Against Arizona

Federal Lawsuit Against Arizona Protects People and the Constitution

Arizona’s new immigration law violates the U.S. Constitution, and police chiefs say it threatens citizens’ safety, write Gebe Martinez and Angela Kelley.

Arizona Gov. Jan Brewer speaks in Phoenix. (AP/Ross D. Franklin)
Arizona Gov. Jan Brewer speaks in Phoenix. (AP/Ross D. Franklin)

It is not often that the federal government files a lawsuit against a state; so when it does, it must have good reason.

It had plenty of good reasons this week when the Obama administration reasserted the federal government’s responsibility to set and enforce immigration policy by filing a lawsuit challenging the legality of Arizona’s new immigration control law.

The U.S. Department of Justice was forced to take action because Arizona’s immigration law violates the U.S. Constitution. Allowing Arizona S.B. 1070 to stand would only invite other states and cities to enact their own immigration enforcement laws and usurp the federal responsibility over an issue that must be handled at the national level.

It is clear that the architects of our federal government understood the importance and role of immigration policy when they placed it firmly in federal hands. States cannot make up their own immigration laws anymore than they can print their own money or enter into treaties with foreign countries.

Arizona crossed a constitutional line when it enacted its immigration law, which requires police to question the legal status of suspects when there is “reasonable suspicion” they are undocumented immigrants. The law also sets “attrition through enforcement,” as the official state policy, which is the intent to enforce the law so harshly that immigrants voluntarily leave the state. Attorney General Eric Holder concluded the law “only creates more problems than it solves.”

Backers of S.B. 1070 say Arizona is simply enforcing current federal immigration law. Not so. S.B. 1070 creates at least three new immigration crimes in Arizona “and none of them mirrors federal policy,” says Gabriel “Jack” Chin, a law professor at the University of Arizona Rogers College of Law and an independent legal analyst.

For example, the Arizona law makes it a criminal violation for undocumented people to work in the United States, but Congress decided not to make that a federal crime. Also, Arizona targets any noncitizen who is transporting undocumented immigrants, but federal law requires that the transportation be across the U.S.-Mexico border or in “furtherance of unlawful presence,” such as smugglers, Chin explained. Furthermore, the Arizona law’s only response for unlawful presence is criminal prosecution, but federal law also allows for civil penalties or other relief due to humanitarian concerns and other issues.

Disappointingly, Arizona’s two U.S. senators, John McCain and Jon Kyl, who were once avid supporters of comprehensive immigration reform, led conservatives’ criticism of the federal lawsuit.

“The American people must wonder whether the Obama administration is really committed to securing the border when it sues a state that is simply trying to protect its people by enforcing immigration law,” McCain and Kyl said in a joint statement.

The American people need wonder no more. The nation’s chiefs of police—the ones who are protecting the people at the community level—support the federal lawsuit for many reasons, but especially because it is just plain wrong.

Police are trained to watch a person’s behavior, not question their legal “status,” which can quickly lead to ethnic or racial profiling, says Salt Lake City, Utah Police Chief Chris Burbank. An Arizona-like law will erode community trust in local police, likely resulting in a sharp rise in serious crimes, he added.

“Anytime we marginalize a segment of our community and we are not going to provide equal protection, that’s wrong. And we should stand up as police chiefs and guardians of the United States Constitution and say so,” Burbank says.

Among the many standing up with Burbank is San Francisco Police Chief George Gascon, who spent three years as chief in Mesa, Arizona, until last year.

“This is going to be extremely difficult for police officers to follow without violating the law. [S.B.] 1070, in the way that it is written, is going to create a tremendous difficult situation for police officers because it will be very difficult not to use race as a predictor of bad behavior,” Gascon said. He explained that officers are going to be increasingly pushed into using race and physical characteristics instead of “a descriptor of a criminal event,” because under S.B. 1070, police can be sued by any single member of the public who perceives that officers are not strictly enforcing the new Arizona law.

The police chiefs of Phoenix and Tucson said in statements filed with the federal lawsuit that the state law will hurt their community policing programs and force them to reassign officers from investigations of violent crimes, property crimes, and home invasions in order to carry out the immigration law.

The Justice Department makes a similar assertion, that the law will divert resources away from high-priority targets, such as immigrants implicated in terrorism, drug smuggling, and gang activity and those with criminal records.

As to the questions that Sens. McCain and Kyl raised about the Obama administration’s commitment to securing the border, they know that the answer is a resounding “yes.” As border state senators, they have seen federal dollars being spent along the Southwestern border, including billions for a “virtual” technology fence based in Arizona.

President Barack Obama continued to expand law enforcement presence and construction of new facilities that were begun during President George W. Bush’s administration. As a former border state governor, Bush appreciated the need for a comprehensive immigration reform program that would combine border security with interior enforcement and legal immigration programs.

The truth is, when given a choice between a mean-spirited enforcement measure like Arizona’s law that resulted from political pandering, or a well-thought out comprehensive approach that deals with a fundamentally broken immigration system, the American people prefer the broader approach.

As wrong as the Arizona law is, Chief Burbank looks for one “positive” result from it: “that it will spur the federal government toward its need to take a look at a very big, sweeping reform of immigration law.”

The police chief is right. And Arizona is wrong.

For more information on the lawsuit see:

Gebe Martinez is a Senior Writer and Policy Analyst and Angela Maria Kelley is Vice President for Immigration Policy and Advocacy at American Progress.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.


Angela Maria Kelley

Executive Director, Center for American Progress Action Fund; Senior Vice President, Center for American Progress