Arizona's New Immigration Law

I hate to write about this, but I have to. As important as it is, immigration is just not one of the issues I'm very passionate about.

When discussing public issues, it is important - essential - to get the facts right. I have often written about how those with whom I disagree have, intentionally or unintentionally, misstated facts in an effort to support their conclusions. As Senator Daniel Moynihan once said, "you are entitled to your own opinions, but you are not entitled to your own facts."

Let me be clear. I would not have voted for Arizona's new immigration law, Arizona Senate Bill 1070. If I were given the opportunity I would vote for its repeal. I think it is misguided. I agree with Texas Governor Rick Perrry. It would not work well in Texas. I don't think it's going to work very well in Arizona, either.

But, those who are opposed to the new law have been guilty of some pretty heavy-duty misleading about what it says and what it does. When one or both sides of an argument are using "facts" that aren't true, it makes it pretty much impossible to reach any kind of consensus.

Arizona S.B. 1070 does not allow the police to stop or arrest someone for "being brown." That's just not true.

Arizona S.B. 1070 does not require police to arrest someone if they suspect them of being in the United States illegally. That's just not true.

Arizona S.B. 1070 does not require people, legal immigrants or otherwise, to carry papers proving their legal presence, at least not any more than they were required to do so already, if at all. That's just not true.

Now, Arizona S.B. 1070 does do something that really concerns me, but it isn't any of the things opponents have been claiming it does when it really doesn't. What it does do that's troubling is impose a requirement on police officers to make a "reasonable attempt" to determine someone's immigration status under some fairly restricted circumstances. What is says, on the point, is this:

"FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS 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."

I say that the requirement is subject to some pretty restricted circumstances because, first, there has to be "lawful contact." Second, there has to be "reasonable suspicion ... that the person is an alien who is unlawfully present." Third, the "reasonable attempt" is only required "when practicable." And, finally, it only has to be a "reasonable" attempt. There is no out and out obligation, under any circumstance, to absolutely determine, beyond a doubt, anyone's immigration status under any circumstances.

And - let's be honest and clear - it doesn't require the police to arrest them, even if they determine that they are an illegal immigrant.

But, it does require them to investigate. The circumstances when the requirement comes into play are very limited, but there is a requirement to investigate.

Yes, there is another part of the law that gives the public the right to sue an officer if they fail to make a "reasonable attempt," but the officer is indemnified, both as to damages and as to trial expenses, unless he acted in bad faith. So, the risk of an individual officer suffering any sort of damage as a result of such a suit is pretty small, unless he just set out to violate the law on purpose.

But, it still troubles me, because it represents the Arizona legislature's attempt to infringe on the traditional, ancient, and important concept of the policeman's discretion.

Extending way back to the common law of England (adopted in our U.S. Constitution, by the way) it has always been within the discretion of the police whether to enforce a particular law in a particular circumstance. If a police officer witnesses a murder with his own eyes, it is now and has always been (even in Arizona) within his discretion whether to make an arrest or not. He was free to let the murderer go, if he decided that was what he wanted to do. He certainly had the discretion to decide whether or not to question a suspected murderer, or whether to even investigate the report of a murder. This was and is the case with any crime.

Except, in Arizona, it's not the case anymore with the crime of being in the country illegally. Now, the policeman has no discretion about whether to investigate such a crime, if the facts do fit the very restrictive conditions of S.B. 1070. He is required, by the legislature, to investigate.

It is not a big intrusion on police discretion, but it is an intrusion, nonetheless. In Texas, where the separation of the three branches of government is enshrined in our state constitution, such a law would almost surely be held to be unconstitutional as a violation of the concept of separation of powers. In Texas, the legislature can make something a crime, but they can't tell the executive how or even whether to enforce that criminal law. That's what Arizona S.B. 1070 does that troubles me, and it's a small crack in a very, very important door.

It's an important door because it protects the individual from a branch of government intent on running over individual rights. The legislature can make an unfair law, but they can't make the executive branch enforce it. It is one of the geniuses of the American system of government that it usually takes at least two branches of government, and sometimes all three, to trample our rights. So, this little crack is important.

Nonetheless, opponents the Arizona law - so many of you my friends and for whom I have such deep respect - facts matter. Truth matters. I agree that the new Arizona law is a bad idea. It is, as they say in Texas, "a bad ol' bill." But, attack it for what it says, and what it does, not for stuff that's made up about it that isn't true. Do that, then we can continue to hold the other side to the truth when they start lying. You know, like "death panels" in the health care bill.

Read it yourself: http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf