Under the U.S. Supreme Court: Challenge to Ariz. law may be shaky

By MICHAEL KIRKLAND  |  May 30, 2010 at 3:35 AM
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WASHINGTON, May 30 (UPI) -- Civil liberties groups have mounted a passionate constitutional attack against Arizona's tough new illegal immigrant law, saying its "sweeping requirements" violate the U.S. and state constitutions and will lead to racial profiling.

A complaint filed in federal court in Phoenix last week raises the specter of a Hispanic-American, or any other ethnic American, having to carry a passport to prove U.S. citizenship to avoid detention.

Feelings run just as high on the other side. Proponents of the law say illegal immigration costs Arizona about $2.7 billion a year in education and police operations -- read Hispanic gangs -- among other things.

Rassmussen Reports says a national telephone survey of 1,000 likely voters, conducted April 22-23, found 60 percent of voters nationwide support the law while 31 percent oppose it. Still, 58 percent said they believe implementing the law will result in civil rights violations for some people. The margin of error was 3 percentage points.

Despite the passions aroused in the case both for and against the law, whether the ACLU-led constitutional challenge will succeed in the arena of the courtroom is problematic.

The smoke signals, based on U.S. Supreme Court precedent, are not good.

The Arizona law tells state and local police to get aggressive about illegal immigration, bypassing federal agencies usually tasked with enforcement. It makes no bones about whether local or state police must take steps to find out if someone is an illegal immigrant -- using the word "shall" in the critical provision rather than "may." It gives police no choice.

The law says to any law enforcement official or agency of all levels in the state: "Where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person's immigration status shall be verified with the federal government."

"Reasonable suspicion" is a very low threshold in legal terms.

Among other things, the law also says, "A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States."

When it announced the challenge last week, the American Civil Liberties Union said a large coalition of minority rights organizations had joined it to oppose the law, which "unlawfully interferes with federal power and authority over immigration matters in violation of the supremacy clause of the U.S. Constitution; invites racial profiling against people of color by law enforcement in violation of the equal protection guarantee and prohibition on unreasonable seizures under the 14th and 4th amendments; and infringes on the free speech rights of day laborers and others in Arizona."

The "supremacy clause" says the Constitution, federal law and treaties are the supreme law in the United States, even if state laws or state constitutions conflict with them.

In the complaint filed in federal court, challengers point to statements by state officials saying the new law was in response to a federal failure to control illegal immigration.

The challenge may meet with some initial court success. The Arizona federal court is under the jurisdiction of the 9th U.S. Court of Appeals, the most liberal federal appeals court in the United States -- but also, traditionally, the most reversed U.S. appeals court.

And one very large pitfall waiting for the challengers is the U.S. Supreme Court's 1999 ruling in Reno vs. American-Arab Anti-Discrimination Committee.

Strong high court majorities produced a two-pronged decision: 6-3, that illegal immigrants could not use a constitutional right, in this case the First Amendment's guarantees of free speech, to avoid deportation; and 8-1, that illegal immigrants had to use the entire administrative process to avoid deportation before turning to the federal courts for help.

The 8-1 prong upheld 1996's Illegal Immigration Reform and Immigrant Responsibility Act, designed to speed up the deportation of illegal immigrants, some of whom had used the courts to delay deportation for years.

Justice Antonin Scalia wrote the majority opinion in Reno, which dealt with Palestinians living in Los Angeles who were accused of having ties to terror organizations.

Don't look to the Constitution as protection against deportation, Scalia told illegal immigrants.

"Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted," Scalia said. "And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing."

He added: "We need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien's continuing presence in this country is in violation of the immigration laws, the government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity."

Significantly, Justice Anthony Kennedy, now the court's powerful swing vote between the four-member conservative bloc and four member liberal bloc, was in the majority on both prongs of the Reno ruling.

An even more ominous precedent for the ACLU-led challenge is 2008's Crawford vs. Marion County Election Board. In that case, a 6-3 Supreme Court majority upheld Indiana's law requiring a prospective voter to produce a government-issued ID, such as a driver's license, before being allowed to cast a ballot.

In the prevailing opinion, Justice John Paul Stevens said the burden placed on some voters by the requirement was not, under high court precedent, enough to invalidate the law.

Stevens conceded some Republicans in the Indiana Legislature, who said they were worried about illegal immigrants casting state ballots, may have voted for the law for political reasons -- Democrats thought it discriminated against the poor -- but said: "If a non-discriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for (the law) are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting 'the integrity and reliability of the electoral process.'"

In dissent, Justice David Souter said: "Indiana's 'Voter ID Law' threatens to impose non-trivial burdens on the voting right of tens of thousands of the state's citizens ... and a significant percentage of those individuals are likely to be deterred from voting ... (Citing the balancing test in a 1992 ruling) a state may not burden the right to vote merely by invoking abstract interests, be they legitimate ... or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The state has made no such justification here, and as to some aspects of its law, it has hardly even tried."

Though he wrote no separate opinion, Kennedy, of course, was in the majority.

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