The legal ramifications regarding the Arizona law which allows state to drive out illegal residents is substantive. In fact, the law has not only crossed the legal spectrum but has also crossed the economic, political and social arena.
In an effort to strike down the law as unconstitutional, the United States government was represented by Solicitor General Donald Verilli and Deputy Solicitor General Paul Clement. At its core, the Arizona Bill 1070 is a blatant message of how states may enforce immigration laws. However, President Obama said that Federal laws regarding immigration supersede that of state immigration law.
According to legal scholars who oppose the law:
- The law violates the first amendment, or the freedom of speech clause of the United States constitution, because law enforcers may scrutinize suspected aliens on their accent.
- The law violates the fourth amendment, or the clause of the United States constitution that forbids warrantless searches, because the law may allow law enforcers to sieze and search a suspected alien’s belongings without any probable cause.
- The law violates the sixth amendment, or the Federal Supremacy clause, because it preempts the Federal laws regarding immigration.
- The law violates that fourteenth amendment, or the equal protection clause because suspected aliens are subjected to stops, arrests and discrimination without due cause.
According to the bill’s authors however, the law does not attempt to supersede Federal law because of concurrent enforcement. That is to say that the law works in parallel with applicable Federal law and does not attempt to undermine them.
In the Supreme Court, Justice Elena Kagan, a member of the liberal bloc who is widely expected to vote for the law’s unconstitutionality, recused herself due to her previous work as the solicitor general. Due to her recusal, the Court may find itself embroiled in a 4-4 decision which means that “The judgment is affirmed by an equally divided court.”
The decision of the 9th Circuit Court of Appeals rendered most of the core clauses in the law unconstitutional:
“Section 2(B) provides that “for any lawful stop, detention or arrest made” by Arizona law enforcement, “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”
Section 6 … adds to Arizona peace officers’ warrantless arrest authority by authorizing such arrests when “the officer has probable cause to believe … the person to be arrested has committed any public offense that makes the person removable from the United States.” (…)
However, the 4-4 decision of the Court is not something which is immediately sure. For one, Justice Anthony Kennedy is known to switch sides depending on the various issues of the Court. If Justice Kennedy decides to side with the conservative bloc of Justices Roberts, Scalia, Thomas and Alito, all expected to vote for the constitutionality of the law, then the Arizona law would be declared as constitutional under a 5-3 vote. If Justice Kennedy however, decides to side with the liberal bloc of Justices Ginsburg, Breyer and Sotomayor, all expected to strike the law down as unconstitutional, then the decision of the 9th Circuit Court of Appeals will be affirmed by an equally divided court. That is, the law would be rendered unconstitutional.