Le·gal In·sur·rec·tion

... if you want to be able to continue using terms like Nazi, Communist and Apartheid to describe the new Arizona immigration law. Or if, like President Obama, you want to claim that the law would allow people to be questioned merely for going out for ice cream. Because none of these accusations have a basis in reality.

Some quick research, available to all the people screaming about the Arizona law, reveals that the U.S. Supreme Court has reviewed the issue of questioning potential illegal aliens regarding citizenship or immigration status, and has found such questioning permissible provided that the "characteristic appearance" of the person was not the sole factor giving rise to a "reasonable suspicion" that the person might be here illegally.

In U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court unanimously (with various concurring opinions) held that "roving patrols" by the U.S. border patrol (which by regulation had to be within 100 miles of the border) could not stop vehicles and question the occupants as to immigration status based solely on the occupants appearing to be Mexican. (I assume this case is why the Arizona statute forbids using race, color or national origin as the sole factor.)

Rather, the Supreme Court held there had to be other articulable factors which formed a reasonable suspicion under a "totality of the circumstances" test.

The Supreme Court provided a non-exhaustive list of some possible factors which could contribute to the formation of a reasonable suspicion, including characteristic appearance (emphasis mine):

"Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant ....

They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion....

Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens....

The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide....

The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut....

In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling....

In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens." [case citations and footnotes omitted.]

Just a year later, the Supreme Court held that no reasonable suspicion was needed to engage in limited questioning of citizenship or immigration status at fixed checkpoints (unlike the roving patrols). U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976). Take a look also at this Congressional Research Service memo discussing the reasonable suspicion (to stop someone and ask questions) and probable cause (to conduct a search) standards, to get an idea of how the courts have struggled with these concepts.

There have been attempts to distinguish these cases, for example, where the questioning was done far away from the border area, or by state police not federal border patrol agents, and so on. And there may be other challenges to the Arizona law unrelated to the stopping and questioning. That's fine. That's why we have courts, to decide such matters.

Just don't claim that the Arizona legislature has done something government was not already empowered to do, or invented some new standard called "reasonable suspicion," or by failing to exclude "characteristic appearance" from being taken into consideration engaged in a clear constitutional violation.

In many ways, we have been there and done that judicially when it comes to the standards for questioning people as to their citizenship or immigration status.

The issue really is whether we want to push right up to these legal limits, or do we want to stop short out of political, philosophical or other concerns. There also are issues as to whether the policy will be effective, and other aspects of the law which may be challenged.

Regardless, the notion that the Arizona immigration law allows the police to question someone's immigration status just because the person "looks Mexican," or is "driving while Brown," or has a particular accent, has no basis in the Arizona statute or the clear history of the law in this area.

So if we were not Nazis and Communists and Apartheidists the day before the Arizona Governor signed the immigration law, we did not become any of those things the day after.

Update: Desmond Tutu picks up on Obama's theme, and wrongly claims that looking or sounding Hispanic is a ground for questioning:

I am saddened today at the prospect of a young Hispanic immigrant in Arizona going to the grocery store and forgetting to bring her passport and immigration documents with her. I cannot be dispassionate about the fact that the very act of her being in the grocery store will soon be a crime in the state she lives in. Or that, should a policeman hear her accent and form a "reasonable suspicion" that she is an illegal immigrant, she can -- and will -- be taken into custody until someone sorts it out, while her children are at home waiting for their dinner.

Glenn Reynolds posts an e-mail from a federal immigration agent who argues that border security is not enough. If and when the courts deal with the Arizona statute, I expect the State of Arizona to argue that the illegal immigration situation has become so bad that the entire state now serves as the equivalent of the 100 mile border area discussed in the Brignoni-Ponce case.

Update No. 2: The Arizona legislature is in the process of amending the law to clarify certain terms, which should insulate the legislation from some of the anticipated challenges:

Another change replaces the phrase "lawful contact" with "lawful stop, detention or arrest" to apparently clarify that officers don't need to question a victim or witness about their legal status.

(h/t HotAir)

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Related Posts:
I Thought We Were Supposed To Be Boycotting California
Just Say It - "All Immigration Laws Are Racist"
Obamacare Requires You To "Show Your Papers"

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