April 30, 2010

ONCE THEY'VE GUTTED THEIR OWN LAW.,..:

More on the Arizona Law: Checking the Text (Linda Chavez, 4/30/10, NRO: The Corner)

My friend Andy McCarthy suggests that those of us raising concerns about the “papers please” section of the Arizona law are either demagogues or haven’t read the law. What he doesn’t do is actually quote the section in question. I think there’s good reason why he and others who defend this law don’t want to draw attention to its actual wording. The grammar and syntax of the section are so convoluted that it is nearly impossible to discern its clear meaning, but it’s worth trying to parse. One of the bedrock principles of conservative jurisprudence is that the words of a statute actually matter, not simply the drafters’ intentions:

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 united states code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A tribal enrollment card or other form of tribal identification.
4. A valid United States federal, state or local government issued identification.

“Lawful contact” does not apply solely to law enforcement but to any “agency” of “the state, or a county, city, town or other political subdivision,” as enumerated in the law. If the drafters had wanted the law to apply only when a police officer had already come into contact with an individual because of a separate and distinct civil or criminal violation, they could have said so. If that had been their intent, they would have had no reason to include a provision for lawful contact by officials of all agencies of the state, county, local, and other political subdivisions. The list is all-inclusive because the law envisions officials from all public agencies — schools, hospitals, social services, etc. — having the right to demand proof of legal residence any time the official has “reasonable suspicion” that the person is an illegal immigrant.

But even in the law enforcement context, “lawful contact” gives wide berth to police officers to approach individuals on the street, the so-called Terry standard. And in this instance, the law specifically permits that contact to occur solely on the basis of “reasonable suspicion” that the person is an illegal immigrant. The drafters could have insisted on a higher standard, such as “probable cause,” but chose the lower threshold to cast a wider net.


In response to critics, Arizona tweaks new immigration law (Byron York, 04/30/10, Washington Examiner)
So now, in response to those critics, lawmakers have removed “lawful contact” from the bill and replaced it with “lawful stop, detention or arrest.” In an explanatory note, lawmakers added that the change “stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.”

“It was the intent of the legislature for ‘lawful contact’ to mean arrests and stops, but people on the left mischaracterized it,” says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the law. “So that term is now defined.”

The second change concerns the word “solely.” In a safeguard against racial profiling, the law contained the phrase, “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.” Critics objected to that, too, arguing again that it would not prevent but instead lead to racial profiling. So lawmakers have taken out the word “solely.”

“There were misstatements by the opponents of the law that this was written to permit some consideration of race in the enforcement of this law,” says Kobach, “and that’s not the case at all.”

There is another part of the law which uses the word “solely,” and that is the section which says, “A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.” Given the clear limitation of actions to those allowed by the Constitution, there was no need to change that phrase.


...the only reason to keep it is the symbolism. Of course, it is what it symbolizes that is the problem.

Posted by Orrin Judd at April 30, 2010 12:18 PM
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