Immigration Reform, or the New McCarthyism

By Chelsea Vail, 2012 (Liberty) - Senator Joe McCarthy has nothing on the Arizona state legislature. 

In April 2010, Arizona passed Senate Bill 1070 and House Bill 2162, the now notorious immigration reform laws. They require state officers to “make a reasonable attempt” to determine an individual’s immigration status during lawful stops. They allow state officers to arrest individuals under reasonable suspicion of immigration fraud during lawful stops without probable cause of another violation and without a warrant. And they expect state officers to do it all without relying on racial profiling. Yeah, right.

What does an illegal immigrant look like, anyway? In Arizona, which shares a border with Mexico and has a 30.8 percent Hispanic population, illegal immigrants look an awful lot like legal immigrants and American citizens. Nationwide, 10.7 percent of Americans use Spanish as their primary language. So how does a state officer “make a reasonable attempt” at discovering an illegal immigrant without relying on visual and aural indications of “race, color or national origin?” Spontaneous confessions seem unlikely.

With a few exceptions, Americans have a constitutional right to travel without being stopped, questioned, or detained. This much was defined at the Supreme Court level in the case of Kent v. Dulles (1957). Rockwell Kent was denied a passport to visit England because of his affiliation with the Communist Party. He was told he would have to attend a hearing and sign an affidavit regarding his Communist affiliation in order to get a passport. This happened to be unconstitutional. The Supreme Court ruled that “the right to travel is an inherent element of “liberty” that cannot be denied to American citizens,” and Kent was granted certiorari.

A lawful stop that turns into an immigration investigation is no longer a lawful stop. The Arizona immigration bills legislate beyond the bounds of travel regulation and impose rules that “abridge basic constitutional notions of liberty, assembly, association, and personal autonomy,” just like in Kent v. Dulles.

Never mind that SB 1070 and HB 2162 also violate the Supremacy Clause, which provides for federal sovereignty over immigration issues; the Equal Protection Clause, which provides for the equal protection under the law of all citizens without regard to race, color, or national origin; the Fourth Amendment, which protects citizens against unreasonable search and seizure; and the First Amendment, which provides for the freedom of speech, because individuals should not be brought under scrutiny for their language or accent.

Never mind all of that. The Arizona immigration bills would be unconstitutional even if every immigration investigation returned an illegal immigrant. They compromise the personal liberty of American citizens to travel freely. They cannot be tolerated.