Kris Kobach defends Arizona’s new immigration law, SB 1070, in yesterday’s New York Times. He says, “Presumably, the government lawyers . . . will actually read the law, something its critics don’t seem to have done.” Well, I read the law and I do not like it.
Whenever a law enforcement officer makes a “lawful contact” with a person, the officer must attempt to determine that person’s immigration status if he or she has “reasonable suspicion” the person is an illegal immigrant. It is a “lawful contact” if the cops ask for a statement at the scene of an accident, for example. Illegals now have an incentive to flee even as mere witnesses. The local police or sheriff’s office cannot have a policy to counter this incentive lest they be sued. The law provides that “a person” may bring suit against any “official or agency” that has a policy that “limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.” The central provision of SB 1070 threatens to reduce the ordinary protections of the law for illegal aliens, which threatens order and security for them and everyone else.
For any law enforcement agency that loses a suit brought under the law, SB 1070 provides sanctions of at least $1,000 “for each day that the policy has remained in effect after the filing” of the suit. The money collected is to be given to Arizona’s Department of Public Safety. The right to sue would seem to apply to the Arizona’s attorney general or other employees at the state level. The law seems to create an inappropriate incentive for persons in (or allied with) the state government to sue local law enforcement agencies to increase the state’s budget.
The law says that Arizona’s attorney general “shall” investigate even anonymous complaints about a business using illegals, subject only to the constraint that the complaint not be based “solely” on “race, color or national origin.” I cannot find any language to the effect that the complaint be reasonable or credible. If a complaint is made and any other consideration is raised beyond “race, color or national origin,” then the attorney general “shall” investigate. Once a business is found to have violated the law it is subject to costly reporting requirement on all of its employees, suspension of its business licenses, and other sanctions. These provisions of the law seem to invite abuse; they seem to invite businesses to use the law strategically against rivals. Large incumbent firms have the advantage in such a game. Thus, the law will have a strong anti-competitive effect.
And if the authorities surreptitiously entice an employer into hiring illegal immigrants, an employer mounting an entrapment defense has the burden of proof to show he or she “was not predisposed to commit the violation.” This provision of the law makes an entrapment defense difficult to mount, thus reducing a constraint on potential abuses of law enforcement.
I do not know whether the law can withstand constitutional challenge. Be it constitutional or not, however, no friend of liberty should support SB 1070.