Since the passage of the Arizona controversial immigration law aimed at a crackdown on illegal immigrants residing in the state, many in the legal profession have wondered when it has suddenly become a state duty to get involved in what is widely regarded as a Federal matter. The United States constitution clearly made it clear immigration issues belong in the Federal domain and not a function of the State; for if Congress had wanted a division of labor between the Federal and State as to immigration matter, it would have indicated so.
The U.S. Supreme Court on June 25, 2012, in a 5-3 decision struck down 3 out of 4 Arizona State law that would have allowed the police to stop and arrest illegal immigrants without a warrant. The law would have made it easier for Arizona law enforcement to deport illegal immigrants when reasonable cause exists they committed public offense that makes it reasonable to remove such a person from the United States.
In its historical decision, the court struck down part of the State’s provisions that: make it a state crime for illegal immigrants not to possess their Federal registration cards; make it a state crime for an illegal immigrant to work or solicit employment without the papers to do so; and allow law enforcement to stop and arrest illegal immigrants without warrant as long as probable cause exists they committed a public offense that justifies removal from the United States.
Such a law if allowed to go through would have turned the State of Arizona to a place where one is asked to “show your papers” wherever you go; a place like Russia where foreigners know they better carry their papers to prove legal status or be detained and then deported. Since the passage of the law in Arizona, it has faced opposition and harsh criticism from immigration activists and the U.S. President who called the law “misguided” and an encroachment on Federal powers to legislate on immigration matters. The result was a lawsuit filed against the State of Arizona by the U.S. Department of Justice and months after the highest court decided to hear the case, it has opted to strike down most of its provisions.
Those who support the controversial State law, claimed such move by the state was necessary because the Federal government has failed to control illegal immigration, making the State of Arizona to expend its resources on security issues caused by the influx of illegal immigrants including the high costs of education and healthcare which the State must bear to provide for illegal immigrants.
Those opposed to the harsh immigration law on the other hand, claimed the Arizona law if allowed, would violate the rights of innocent law-abiding citizens and give way to racial discrimination against Hispanics who are legally in the country since law enforcement, may be justified to stop and arrest just about anybody that fits the profile, irrespective of whether they are legally in the country or not.
While the Supreme Court struck down most of the controversial law, it upheld a part of the law that requires State and law enforcement, during routine stops, to inquire of the immigration status of anyone they stop; if there is a “reasonable suspicion” the person is in the country illegally. However, the court made clear that section may still be challenged in a court of law. In answer to the court’s decision upholding the provision, the Obama administration has moved to suspend the Federal Enforcement Cooperation Program known as Federal Program 287 (g), which is a partnership between the Federal and local authorities, that enabled local enforcement to make immigration arrests.
The move by the Federal to suspend 287(g), means that even if the State law enforcement makes immigration arrests, the Federal would be selective in processing such arrests, Federal ICE officials, will only respond to immigration matters that meet certain criteria such as, when the illegal immigrant arrested is a felon. The outcome is any State that attempts to implement Arizona’s law based on the Supreme Court’ ruling, will lack the Federal’s support.
Even though, this particular section upheld is open to legal challenge, there is no doubt the court’s decision would create fear and make many illegal immigrants insecure to reside in the State of Arizona; making one to think whether Arizona has joined the league of what is called a “police State.”
Dr. Adeyemi Oshunrinade [E. JD] is an expert in general law, foreign relations and the United Nations; follow on Twitter @san0670.