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The real problem with AZ’s immigration law: outdated syntax

One of the accomplishments of the Civil War was to decide a crucial question of syntax.

“Before the war, it was said, ‘the United States are,’” said the famous Civil War historian Shelby Foote. “Grammatically, it was spoken that way and thought of as a collection of independent states. And after the war, it was always “the United States is,” as we say today without being self-conscious at all. And that sums up what the war accomplished. It made us an ‘is.’”

There are some things that as a matter of constitutional law and simple practicality that only the federal government can and should do. States should not create patchworks of regulations that affect U.S. citizens from different states differently. Not only does the Constitution provide that the “citizens of each State shall be entitled to all privileges and immunities of the several States,” but common sense tells you that if the United States is an “is,” then its citizens should be able to travel freely throughout all 50 states.

Senate Bill 1070, which Gov. Jan Brewer, Sen. Russell Pearce and others have told us was enacted out of frustration with the federal government, infringes upon the constitutional right of U.S. citizens from New Mexico and Washington states to travel.

S1070 creates flawed presumptions, which are unique to Arizona and cannot be found in any state or federal law, regarding whether individuals are “not unlawfully present” in the U.S. For instance, if you possess a driver’s license from a state that “requires proof of legal presence in the United States before issuance,” then you are presumed to be “not unlawfully present” in this country. Most states require such proof before issuing a driver’s license, but New Mexico and Washington do not. What happens to a U.S. citizen from New Mexico or Washington who is stopped in Arizona, wrongly suspected of being in the country illegally and has only his driver’s license to show the police officer? Well, according to S1070, he would not get the presumption that he is “not unlawfully present” in this country. What happens next to this U.S. citizen? S1070 doesn’t say. It is left up to the discretion of the police officer. However, if the citizen is arrested, S1070 requires that law enforcement determine his immigration status before he could be released.

Here are a few facts about the presence of New Mexicans in Arizona. According to the Department of Tourism, in 2008, New Mexicans accounted for 783,000 overnight tourism trips and 182,700 overnight business trips into Arizona. There are currently 862 New Mexico residents enrolled in Arizona’s three state universities and ASU alone has 2,763 alumni who live in New Mexico. In 2009, 7,050 New Mexicans visited Arizona’s Painted Cliffs Welcome Center, and at last January’s P.F. Chang Rock ‘n’ Roll Marathon, 186 New Mexicans ran the marathon and 606 in the half marathon.

According to the U.S. Census Bureau, almost 45 percent of New Mexicans are Hispanic. It requires no imagination to see the uncertain peril that an Hispanic resident of New Mexico faces when stopped by law enforcement in Arizona, even when that person in a U.S. citizen. The city of Tucson has stated in federal court that S1070 will force its police officers to require “additional proof of citizenship or lawful status upon persons from New Mexico and other states.”

Did the Arizona Legislature and Gov. Brewer intend to inflict this collateral damage onto the constitutional rights of U.S. citizens who live in other states? I hope not. But that’s what happens when you act out of frustration instead of careful thought. That’s also what happens when your syntax is outdated by 145 years.

— Dan Barr is an attorney with Perkins Coie Brown & Bain. He has filed a brief in the S1070 litigation on behalf of the Lawyers’ Committee for Civil Rights Under Law arguing that S1070 infringes upon the constitutional right to travel.


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