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Wednesday, April 28, 2010
Law - Is Arizona's new immigration law constitutional?
"A Law Facing a Tough Road Through the Courts" is the headline to a NY Times story today by John Schwartz and Randal C. Archibold. It behins:
Can Arizona’s controversial new immigration law — allowing the police to stop people and demand proof of citizenship — pass constitutional muster?Ashby Jones of the WSJ Law Blog has an entry this morning headed "Constitutional Challenges to Arizona Immigration Law on Their Way."To many scholars, the answer is, simply, no.
“The law is clearly pre-empted by federal law under Supreme Court precedents,” said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.
Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona’s effort to enforce its own laws is destined to fail.
But even some experts who say they are troubled by the law said it might survive challenges.
“My view of the constitutional question is that it is unconstitutional,” said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. “But it’s a far cry from predicting empirically what a judge who actually gets this case will do.”
Whether any challenges to the Arizona law succeed could come down to the perception of judges about whether it competes with federal law.
To Kris W. Kobach, the law professor at the University of Missouri-Kansas City School of Law who helped write Senate Bill 1070 and many other immigration measures around the country, the key issue is “concurrent enforcement” — that is, whether the state law parallels federal law without conflict.
Because the Arizona statute draws directly on federal statutes concerning documentation and other issues, “the Arizona law is perfect concurrent enforcement,” Professor Kobach said.
The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants’ rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, “will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant.”
Posted by Marcia Oddi on April 28, 2010 09:42 AM
Posted to General Law Related