Arizona Law Will Triumph in Court; Constitutional Challenges Have Little Support in Case Law
Byline: John Winn, SPECIAL TO THE WASHINGTON TIMES
Despite howls of outrage from the political left and right, Arizona's new immigration law (SB 1070) will probably withstand constitutional challenge. At its heart, the statute defines as unlawful trespass the presence in the state of adult aliens (noncitizens) who do not possess valid federal identification. The legislation specifically invokes Section 1304 of Title 8 United States Code. Section 1304 requires aliens at all times to carry a certificate of alien registration or an alien registration receipt card. Adequate federal documentation would therefore consist of a permanent resident Green Card, work visa or immigrant visa.
Most criticism of the Arizona law is that enforcement will inevitably lead to unlawful racial profiling by police. The problem with this argument is two fold. First, amending language (which arguably wasn't needed) requires all police inquiries to be based upon an otherwise lawful stop, detention or arrest. The other problem with the illegal profiling argument is that even if such practices were to occur, racial profiling usually isn't illegal, nor does profiling typically violate the United States Constitution. Racial profiling occupies a complicated limbo-land between notions of equal protection (under the 5th and 14th Amendments) and protection from unreasonable search and seizure in the 4th Amendment. The problem with a judicial ban on racial profiling is that it would de facto deprive the police of its most critical law enforcement tool: the hunch. Banning profiling would simply lead to protracted burden-shifting inquiries into the motivation of police whenever a minority suspect is detained based upon a third-party report of crime to which the arresting officer was not personally a witness.
Over the years, the Supreme Court has been quite protective of police hunches. In Whren v. United States (1996), the court unanimously upheld vehicles stops based upon reasonable cause when a traffic violation occurred, despite the subjective intentions, "ulterior motive "or even"actual motivation "of the officers involved. The Supreme Court has approved police checkpoints and roving patrols near borders to question occupants upon"articulable fact "and"rational inference "that the vehicle may contain illegal aliens (United States v. Martinez-Fuerte, 1976). In 1992, the U.S. Court of Appeals for the Eighth Circuit upheld the detention and questioning of an African-American teenager in which virtually the only reason for the initial stop was the subject's race and youth. The Eighth Circuit noted that"facts are not to be ignored simply because they may be unpleasant. …