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Arizona's immigration law twists the Constitution in the pursuit of illegal immigrants

Thursday, April 29, 2010; A16

HOW MUCH FURTHER can Arizona go in its never-ending quest to harass undocumented immigrants, on whom the state relied in happier times to sustain a construction and hospitality boom -- in other words, to build much of Phoenix? The new statute it just passed, which will turn immigrants who came here illegally into quarry for law enforcement agencies statewide, is a bad law in a number of respects, including the following:

-- It invites racial profiling. The law compels police to search for undocumented immigrants based on an ill-defined "reasonable suspicion" of illegality. The real-world effect of this language will be to force local police to use skin color, accent or limited proficiency in English as the basis for suspicion, much as sheriff's deputies in Maricopa County (Phoenix) already have been widely and credibly accused of doing in hundreds of lawsuits.

Nearly a third of Arizonans are Hispanic -- that's why the state has bilingual ballots -- and many of those who are legal residents and U.S. citizens look and speak like undocumented immigrants, to whom they are often married or related. Since police lack any sure-fire method of spotting illegal immigrants based on "reasonable suspicion," Arizona police inevitably will target the legal sort as well, in blatant violation of their civil liberties.

-- It ties the hands of law enforcement. Since the law allows any citizen to sue local police for failing to enforce immigration law, police will be distracted and diverted from other priorities. Some police chiefs are wondering whether they will be sued for failing to prioritize illegal immigration if, for instance, they assign a team to crack down on drunk drivers. Their fear is compounded by the threat of fines of up to $5,000 per day for police agencies that fail to enforce the law. Little wonder the bill was opposed by the state's Association of Chiefs of Police.

-- It poisons police relations with immigrant communities. By fomenting the justified fear among immigrants that any contact with law enforcement agencies will lead to questions about their status, the law makes it increasingly unlikely that immigrants will report crimes, cooperate as witnesses or provide tips to police.

-- It preempts federal law. Federal law treats illegal immigration as a civil violation; Arizona law criminalizes it by using the legally dubious mechanism of equating the mere presence of undocumented immigrants with trespassing. The Arizona law does not merely mirror federal law, as its defenders insist; it broadens and usurps it. Whether that stands the test of constitutionality is likely to be decided in the courts.

In the meantime, the estimated 460,000 undocumented immigrants in Arizona, and the state's dyspeptic dealings with them, stand as testaments to Washington's failure to enact effective immigration reform. Fearful of talk-radio xenophobes and primary challenges, lawmakers in Congress have abdicated their responsibility to fashion legislation that would address reasonable concerns about porous borders, scofflaw employers and the demand for a steady supply of unskilled labor from south of the border. Until Congress acts, other states and localities will be tempted to imitate Arizona's folly, or worse.

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