The Costs and Legal Hazards of an Arizona-style Immigration Law in Nebraska

by Norman Pflanz

Staff Attorney for the Immigrant Integration and Civic Participation Program at Nebraska Appleseed Center for Law in the Public Interest

In April 2010, the state of Arizona passed SB 1070, which would require local law enforcement officers to inquire into an individual’s immigration status during any lawful stop, detention, or arrest; forbid local law enforcement from releasing any person who is arrested until the person’s immigration status is determined; create a state crime for an immigrant’s failure to apply for and carry required documents; criminalize the solicitation and performance of work without proper immigration documents; authorize the warrantless arrest of certain immigrants; and allow private citizens to sue law enforcement agencies and officials if they believe they are not sufficiently enforcing immigration laws, among other provisions. After the law was passed, seven lawsuits were filed by civil rights organizations, individuals and the United States to block its enactment. In July 2010, U.S. District Court Judge Susan Bolton granted in part a preliminary injunction that has kept key sections of the law from going into effect. On November 1, a three-judge panel of the Ninth Circuit Court of Appeals heard Arizona’s appeal. 

As indicated by the preliminary injunction to block major portions of the law, many provisions of SB 1070 violate fundamental constitution principles and rights. One such principle is the preemption doctrine, derived from the Supremacy Clause in Article VI of the U.S. Constitution, which provides that the “Constitution and the laws of the United States… shall be the supreme law of the land… anything in the constitutions or laws of any State to the contrary notwithstanding.” The Supremacy Clause has been interpreted by the U.S. Supreme Court to invalidate state or local laws that “interfere with or are contrary to federal law” (Gibbons v. Ogden). Regulation of immigration is a federal issue—a patchwork of state and local laws would be unworkable—and state and local attempts to regulate immigration are preempted by federal law. 

Under Section 2 of Arizona’s law, local police are newly required to inquire into immigration status during any “lawful stop, detention, or arrest.” As described by law enforcement, requiring local police to serve as federal immigration agents has dangerous ramifications for the public safety of all community members. The defining element of community policing is the development of relationships between police and their communities, including immigrants. Police officers rely upon these relationships to obtain information critical to the prevention and investigation of crime. When some community members fear the police, it becomes less likely that crimes will be reported, or that witnesses will come forward, making us all less safe. 

Additionally, the requirement that law enforcement must determine certain individual’s immigration status may be unconstitutional because of the significant burdens it would place on lawful immigrants in Arizona. The U.S. Supreme Court has struck down similar state laws since such statutes could adversely affect international relations and how U.S. nationals are treated in other countries. SB 1070 may also violate the Fourth Amendment’s search and seizure protections, since SB 1070 authorizes warrantless seizures of individuals without probable cause that they have committed a crime. Additionally, Section 2 may violate the rights to due process and equal protection of the law if the statute created an unacceptable risk of arbitrary and discriminatory enforcement, or if there is an increase in incidences of racial profiling.

Also problematic is Section 3’s criminalization of certain immigrants’ failure to complete or carry an alien registration document. Although federal law requires certain immigrants to register with the federal government and carry such documentation, failure to do so is not a criminal offense. In blocking enforcement of this provision of SB 1070, the district court determined that Arizona’s attempt to create state criminal penalties would likely be preempted by federal law. Section 5, which seeks to criminalize the hiring, soliciting and performing of work by unauthorized individuals suffers from the same deficiencies and has been enjoined by the district court. The court reasoned that while federal law contains only civil sanctions against such unauthorized employees, SB 1070 impermissibly makes it a state crime for an unauthorized immigrant to perform work in the state. Finally, the district court enjoined Section 6, which would authorize warrantless arrests of certain individuals if the officer has “probable cause” to believe the person has committed a crime for which the person could be removed from the United States. The district court reasoned that such a complex determination should be determined through a federal administrative system rather than a split-second decision by a police officer who is understandably untrained in the complexities and nuances of immigration law.

Arizona in Nebraska

Unfortunately, this fight will soon be coming to Nebraska. Senator Charlie Janssen of Fremont has promised to introduce a bill similar to SB 1070 in January 2011. This is the last thing that we need in Nebraska, especially with the climate of fear and hostility that has been created by the passage of an anti-immigrant ordinance in Fremont. Despite the fact that the ordinance has not gone into effect, we have already seen the community divisions that follow such laws. Passage of a law similar to SB 1070 would only exacerbate this. 

Across the country, we have seen the destructive effects of state and local attempts to regulate immigration. While these local and state laws may purport to only target undocumented immigrants, all immigrants and minorities—including citizens, legal residents, and community members born in the U.S.—suffer from the discrimination and humiliation that flows from these ordinances. These laws effectively empower ordinary citizens to enforce federal immigration laws, but do not give them any tools or guidance for doing so. Consequently, even well-intentioned citizens may turn to crude proxies for immigration status, which could result in discrimination against individuals who are perceived to be “foreign-looking” or “foreign-sounding.” 

Along with Fremont, other comparably sized communities that have passed immigration ordinances have experienced similar high costs and community divisions. Hazleton, Pennsylvania (population 23,000) has run up $2.4 million in legal costs for an ordinance that made it unlawful to hire or rent to undocumented immigrants. A federal appeals court recently upheld a ruling that the ordinance is preempted by federal law. Farmer’s Branch, Texas (population 27,500) has spent over $3.2 million on court costs for its ordinance thus far. In May 2008, a federal court permanently enjoined the ordinance. In Fremont, the city has imposed an 18 percent increase in property taxes and has set aside $750,000 for the first year of defending the ordinance. Kris Kobach, attorney for the legal arm of the Federation for American Immigration Reform (FAIR)—which is listed as a ‘hate group’ by the Southern Poverty Law Center—has helped write each of these failed laws and the Arizona law.

Arizona has already lost sporting events, conferences and meetings to other states, costing tens of millions of dollars in business. In the first week alone, the “Hotel and Lodging Association” reported that 19 meetings had been cancelled because of the law, representing $6 million in lost revenue. In the meantime, the state faces expensive legal costs, and Arizona’s governor has allocated $250,000 public relations budget to help repair the state’s image.

Based on the experiences of other local and state governments, Nebraska should not risk our financial stability, public safety and community spirit by passing a law similar to SB 1070. Instead, we must insist that our federal elected officials in Congress create workable solutions that uphold our values and move us forward. 

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