The Arizona Immigration Law is a Constitutional Nightmare

SB 1070 flushes fundamental American civil liberties down the toilet.

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You thought the healthcare case created a storm. Well you haven't seen anything yet. Next week the Supreme Court hears oral arguments on the constitutionality of SB 1070, the Arizona immigration law. Any case that involves race creates political fireworks.

The Arizona law is a constitutional nightmare.

One part of the law allows the police to hold people arrested indefinitely until their immigration status is verified. What it means is that American citizens who look like illegal immigrants because they have brown skin and who are suspected of a crime can be held indefinitely without trial. This part of the law violates the due process clause in the Fifth Amendment and the equal protection clause in the 14th Amendment. SB 1070 flushes fundamental American civil liberties down the toilet.

[See a collection of political cartoons on immigration.]

The Arizona law states that "the intent of the law is attrition through enforcement to deter the unlawful entry and presence of illegal aliens." Well, you have a constitutional problem right there. Article I, Section 8 the Constitution clearly gives Congress, not the states the power "to establish a uniform Rule of Naturalization."

The state says it had to act since the feds haven't acted. There are several problems with this argument.

The reason that the founders gave Congress the power to regulate immigration is that there would be chaos if each of the 50 states did the same thing and created their own immigration policies.

[Read: Partisan Bickering Hangs Over Immigration Hearing]

For another thing, the logic of the Arizona argument is the same thing as saying that it or any other state could declare war against another country if Congress didn't. Article 1, Section 8 not only gives Congress the power to set rules of naturalization, it also gives it the power to declare war.  And why not let the states instead of Congress have the Article I power to coin money. Of course that would lead to economic disaster. I don't know about you but I don't have the math skills to figure out the exchange rate for financial transactions between Maryland and Virginia.

Finally, the state's argument that the feds are not acting is just wrong. Illegal immigration has slowed steadily in the last few years. There has been a large increase in the number of Border Patrol agents stationed on the Mexican border. And the Obama administration has deported record numbers of illegal immigrants convicted of crimes. But supporters of SB 1070 just want to overlook the facts so they can sustain their prejudices.

[Read the U.S. News debate: Should the United States Build a Fence on Its Southern Border?]

George W. Bush and Barack Obama proposed a solution to the problem that doesn't even violate the Constitution. These presidential proposals would intensify enforcement of immigration efforts at the Mexican border, penalize employers who hire undocumented workers, and create a path to citizenship for people in the U.S illegally. Congress failed to act on either of the proposed laws. Even though the two presidential proposals are similar, several GOP senators who supported the Bush proposal now oppose the Obama bill. Go figure.

After the court issues rules on the Arizona law in June, the justices should disperse as quickly as possible because whatever they do, there will be a lot of very unhappy people out there.

  • Read the U.S. News debate: Is Newt Gingrich Right About Immigration?
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