Among the arguments put forth by supporters and critics of Arizona’s immigration bill, S1070, most lie upon constitutionality, the thrust of the arguments lying in the sphere of equal protection.
Under the 14th Amendment of the U.S. Constitution, no “person” shall be deprived of equal protection. As you may recall from your days sitting in Con Law, in order for a law to be valid and not violative of the equal protection clause, it must pass a certain level of “scrutiny,” with the more lenient level being rational basis, and the toughest – most appropriately named – being strict scrutiny.
When it comes to the crucial question of which level to use, the analysis focuses on what exactly is being alleged. A violation of a fundamental right? If so, the strictest form of scrutiny is used, requiring that the regulation be narrowly-tailored to achieve a compelling government interest. Now, is “equal protection” a fundamental right? One could safely say so. Yet, at the same time, past decisions have indicated that, when looking at race and enforcement of immigration laws, the rational basis test should be used. This begs the question: Which test should be used here? Further leading to the ultimate question of whether the bill will succeed in passing the test.
An array of classifications can form the basis of scrutiny in regard to SB1070, including the commonly-referenced category of race, alienage, and nationality. As Professor Kenneth Agran of Whittier Law School offered in a recent article, the right to travel has been left out (editor’s note: An amicus brief filed as part of one of the lawsuits against S1070 now makes this argument). As I now posit, so has economic liberties. If the right to travel is to be used as the foundation of the analysis of the law’s validity, strict scrutiny will be used to determine whether the law is valid under the realm of substantive due process. However, should economic liberties (including the right to enter into and enforce contracts, the right to pursue a trade or profession, and the right to livelihood) be used as the basis of the analysis, then rational basis must be used. While economic liberties may seem to be a far-fetched argument, it certainly is a viable one, as it can be argued that the bill substantively violates an individual’s right to due process by hindering an Arizonian’s right to do business in the state, as out-of-state businesses and organizations have shown interest in refraining from conducting business with them in protest of the bill.
Now, going back, the argument of race, alienage, and nationality stands on the premise that this category is a “suspect classification,” thus requiring a strict scrutiny analysis under the equal protection branch of fundamental rights. However, alienage is only sometimes the basis for this high level of scrutiny. A unique level of scrutiny – rational-basis-with-a-bite, as it has been known – requires only a substantial relation to an important government purpose, and this test replaces strict scrutiny where the discrimination concerns undocumented alien children. Strict scrutiny is also replaced, in this instance with the rational basis test, where the alienage discrimination concerns the functioning of government (such as voting, serving as a juror, being a police offer, etc.). Clearly, the latter classification is inapplicable since a function of government is not at issue, but what about the former?
The effect of the bill on undocumented individuals of all ages, including children, is unmistakable. In ~Plyler v. Doe~, a Texas statute denied undocumented children to receive free public education. In analyzing the law, the Supreme Court chose not to use strict scrutiny, stating that the test is used when a fundamental right was involved but that education is not a fundamental right. The court also stated that although strict scrutiny is used for suspect classifications, alienage is not a suspect classification because the undocumented children are illegal and not due any protection. The court eventually struck the law down under the rational-basis-with-a-bite test.
So, will S1070 hold the same fate? If one is to use the court’s reasoning in ~Plyler~, it is doubtful. Here, a fundamental right is certainly involved, such as the right to travel. Also, even if one agrees with the court’s finding in ~Plyler~ that alienage is not a suspect classification here, there is a related classification – too closely related to dismiss – that is certainly suspect due to a potential prevalent stereotype, and thus due protection: Mexicans. By simply using the court’s rationale in ~Plyler~, a stronger argument is made for the use of strict scrutiny.
Regardless of which road one uses – right to travel or economic liberties under due process, or race, alienage, and nationality under equal protection – both fields of fundamental rights will lead to the mountain of strict scrutiny. How difficult it is for a regulation to withstand the test of strict scrutiny is certainly no question. The regulation must be absolutely necessary to achieve a compelling government purpose. In Arizona’s case, many reasons have been thrown into the pot of supporting grounds for the bill, including crime, smuggling, safety, etc.
Yet, what does the bill itself state the purpose to be? After all, it has long been understood that the compelling state interest required in a strict scrutiny test must be the actual stated purpose – not just a possible factor, not an afterthought. Looking to the introductory words of the bill, the purpose is clear: “The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.” Cooperative enforcement?
When considering the years of cooperative enforcement, and the plethora of cooperative efforts already in place between state and federal governments, this certainly changes the analytical landscape of the bill, now doesn’t it?
-Mona Parsa is an attorney in private practice and a legal analyst who lives in California.