Most of the lawsuits intended to wipe out Arizona’s immigration law are based on a plethora of fears, mainly that it will lead to racial profiling and blur the lines between state and federal authority, but other arguments have surfaced over the right to travel and conduct business freely across state lines.
One of the legal challenges even reduces the argument to the distinct criteria used by states to issue driver’s licenses.
S1070, the immigration legislation that was signed by the governor on April 23, will require law enforcement officers to accept a valid Arizona driver’s license or identification card as proof that someone is in the country legally. But opponents of the law argue that people from the four states in which illegal immigrants can still get a license, including neighboring New Mexico, could be subject to harrassment and detention under S1070.
Six lawsuits have been filed seeking an injunction that will prevent the law from taking effect while the cases play out in court. But if the law takes effect on July 29, residents of Hawaii, New Mexico, Utah and Washington could be subject to detentions and arrests that residents of Arizona and most other states would not face, according to attorney Daniel Barr of the firm Perkins, Coie, Brown & Bain. That, he said, would be an unconstitutional violation of U.S. citizens’ right to travel freely and the federal government’s right to regulate commercial activity between the states.
Most of the lawsuits focus on allegations that S1070 violates the Constitution’s preemption clause by seizing authority reserved for the federal government. Three of the six lawsuits seeking to overturn the law also claim that S1070 violates sections of the U.S. Constitution that allow the federal government to regulate interstate commerce and prevent states from treating the residents of other states differently than their own.
But only one of the suits, a case being spearheaded by the American Civil Liberties Union and the Mexican-American Legal Defense and Education Fund, specifically cites the driver’s license issue. Barr’s firm filed an amicus brief in the case, Friendly House v. Whiting, to outline that argument.
“This shows why this area is preempted, because you have … this sort of collateral damage to the constitutional rights of citizens here,” Barr said. “I would be surprised if the people in the Legislature thought, ‘Let’s screw over U.S. citizens from New Mexico.”
Barr and others argue that S1070 violates a section of the Constitution known as the Privileges and Immunities Clause, which protects citizens’ right to travel freely between states, and the Commerce Clause, which authorizes the federal government to regulate interstate commerce.
Barr argues that residents of the four states that don’t check the immigration status of driver’s license applicants would be subject to lengthy detentions because the law will require police to verify a person’s immigration status if there is a “reasonable suspicion” that the person is in the country illegally.
“One thing the law does say is if the police cannot determine your immigration status … then you can’t be released until you do,” Barr said. “You have a citizen of the United States … who can be treated differently than other citizens of the United States, simply because of what state they’re from.”
Tucson attorney Maurice Goldman posed a hypothetical dilemma that he believes would be common under S1070: A trucker from New Mexico is pulled over by police while passing through Arizona, but the license is not enough to dispel suspicion that the trucker might be in the country illegally. The officer knows that his department is subject to lawsuits if S1070 isn’t fully enforced, and either detains the trucker until immigration authorities can verify the person’s residency status or finds cause to make an arrest.
“If I have a driver’s license that comes from a state that doesn’t mandate checking a person’s legal status, I am subject to potentially getting arrested under SB 1070, which has a negative effect on interstate commerce,” Goldman said.
Lt. Brian Lee, a spokesman with the Maricopa County Sheriff’s Office, said he doesn’t expect the driver‘s license issue to be a problem. If a deputy had reasonable suspicion that someone was in the country illegally, a New Mexico license wouldn’t be proof of legal status, he said. But in such situations, Lee said, the deputies would simply call U.S. Immigration and Customs Enforcement (ICE). If the person was not in ICE’s database as having a prior immigration violation, the inquiry would end there, Lee said.
“It’s not like it’s just a nine-to-five operation,” Lee said of ICE. “They have a law enforcement operation round the clock.”
Attorneys who were hired by the state to defend the law argue that S1070 should not be overturned based on hypothetical violations of constitutional rights. In a response to the Friendly House lawsuit filed in U.S. District Court, attorneys for the state wrote that the plaintiffs are assuming prematurely that the law will violate the right to travel.
Actual evidence of discrimination based on out-of-state residency is required before plaintiffs can claim violations of the Privileges and Immunities Clause, the state’s motion said. Just like the claims that S1070 will cause racial profiling against Hispanics, no such alleged violation has taken place.
Paul Bender, a constitutional law professor with Arizona State University, said claims that S1070 violates the right to travel and the Commerce Clause are invalid. He said the law is more likely to be overturned on grounds that it preempts federal law, but if the state has the right to enforce federal immigration law, it certainly has the right to verify immigration status.
Besides, Bender said, if the courts found that the driver’s license issue was an unconstitutional violation of the right to travel or the Commerce Clause, the Legislature could simply amend S1070 to say police must accept all states’ driver’s licenses. That would allow the state to rectify the one issue while leaving the rest of the law intact, negating opponents’ goal of overturning S1070 as a whole.
United States of America v. State of Arizona
The federal government’s lawsuit alleges that S1070 violates the Constitution’s Supremacy Clause, federal preemption and the Commerce Clause. The lawsuit states that S1070 represents an “impermissible attempt” by the state to establish its own immigration policy. Specifically, the lawsuit argues that sections one through six of S1070, such as the requirement that police check people’s legal status, the right of Arizonans to sue the state for non-enforcement, the misdemeanor charge illegal immigrants would face for not carrying federal documents and several other provisions conflict with both federal law and foreign policy.
Friendly House v. Whiting
The lawsuit, spearheaded by the American Civil Liberties Union and Mexican-American Legal Defense and Education Fund, includes numerous other plaintiffs, such as the Service Employees International Union, Arizona Hispanic Chamber of Commerce, Southside Presbyterian Church and a number of others. In addition to the Supremacy Clause argument, the suit alleges that S1070 violates the
14th Amendment’s guarantee of equal protection by subjecting Latinos to racial discrimination, the Fourth Amendment protection from unreasonable search and seizure, the right to due process and the First Amendment rights to freedom of speech, freedom of assembly and right to petition.
National Coalition of Latino Clergy and Christian Leaders v. State of Arizona
The suit, filed against the state and Brewer on behalf of more than a dozen people and organizations that the Latino clergy group said will be negatively affected by S1070, argues that the law violates the Constitution’s Supremacy Clause and the right to due process. The lawsuit also alleges that S1070’s restrictions on picking up day laborers violates the First Amendment protection of free speech.
Escobar v. Brewer
Tucson police officer Martin Escobar’s suit alleges that S1070 is the “product of racial bias aimed specifically at Hispanics,” and that the law’s enforcement would force Escobar to violate Hispanics’ rights while hindering him in his professional duties. The suit alleges that S1070 violates federal preemption, the right to free speech, the right to due process and the right to equal protection. S1070 puts every Hispanic resident of Arizona at risk of unlawful detention, according to the lawsuit.
Frisancho v. Brewer
Plaintiff Javier Frisancho, a Washington, D.C., resident, wrote that he plans to visit Arizona later in the year to research the 1997 “Chandler roundup” of illegal immigrants. Frisancho claims he will be subjected to unlawful discrimination because of his ethnicity. The suit claims that S1070 violates the Supremacy Clause, the due-process clause and equal-protection clause of the 14th Amendment, the right to travel and the due-process clause of the Arizona Constitution. The suit also cites the Civil Rights Act of 1871, which allows people to sue governmental entities for civil rights violations.
Salgado v. Brewer
David Salgado, an officer with the Phoenix Police Department, sued Brewer and the city of Phoenix on grounds that officer training for the enforcement of immigration law is insufficient. The officer argues that he interacts frequently with Hispanic children who do not carry the identification required under S1070. The lawsuit says Salgado will not enforce S1070 because doing so would preempt federal law, specifically the Immigration and Nationality Act, and would require him to use race or ethnicity as a primary factor, which would violate Latinos’ 14th Amendment rights. In regard to children who are in the country illegally, Salgado argues that enforcing S1070 would also lead to violations of Plyler v. Doe, a 1982 U.S. Supreme Court ruling that protects children’s right to a public education, regardless of immigration status.