Arizona’s controversial immigration law — SB 1070 — heads to the Supreme Court this week. One can only hope that the Justices do a better job reading the law than much of the media. False claims about the law abound, so here’s an overview directly from the law’s text. Recognizing that this is an artificial distinction, I’ve divided my summary in half by “anti-immigrant provisions” and “anti-business provisions.”
SB 1070’s intent is “to make attrition through enforcement the public policy of all state and local government agencies in Arizona… to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States” (Section 1). To that end, the law expressly forbids any state or local agency from adopting “a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law” (Section 2(A)).
In application of these goals, police must make “a reasonable attempt when practicable to determine immigration status” during “any lawful contact” if “reasonable suspicion” exists that the individual is undocumented. This provision expressly forbids police from considering “race, color, or national origin” and allows individuals to use “any valid United States federal, state or local government issued identification” (Section 2(B)). The same section allows local governments to maintain immigration databases for the purposes of “determining eligibility for any public benefit,” “verifying any claim of residence,” and “determining whether [an alien] is in compliance with federal registration laws” (Section 2(E)).
If any “political subdivision” or “official” “adopts or implements a policy or practice” that violates these provisions, any legal resident “may bring an action to challenge” (Section 2(I)). Police officers are specifically “indemnified by the officer’s agency for costs incurred in connection with any action” (Section 2(J)). The penalties for violation are $1,500 “for each day that the policy has remained in effect after the filing of an action” for “the entity” (Section 2(I)). The section concludes ironically with the assertion that “this section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens” (Section 2(K)).
The following section makes the “willful failure to complete or carry an alien registration document” (Section 3(A)) a class 1 misdemeanor with a $500 fine (plus jail costs)—it is considered a class 4 felony for a second offense or if within five years, the individual “has been removed from the United States” (Section 3(D, H)). Section 6 adds to this provision by allowing police “without a warrant” to make an arrest “if the officer has probable cause to believe that the “person to be arrested” has committed a deportable offense (Section 6(A)).
Section 4 outlaws “human smuggling,” and allows police to “stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe that the person is in violation of any civil traffic law and this section” (Section 4(D)). Section 5 also makes “transporting or harboring” undocumented aliens or “encouraging” them to enter the state a class 1 misdemeanor or a class 6 felony for more than 10 undocumented aliens. Similarly, Section 10 allows police to seize any vehicle that is “transporting” an undocumented alien. Section 11 creates a “gang and immigration intelligence” fund that consists of fines on businesses and immigrants to be “used for gang and immigration enforcement and for country jail reimbursement” (Section 11(A)).
Section 5 makes it a class 1 misdemeanor to stop a vehicle on a street and “attempt to hire or hire and pick up passengers for work at a different location” if the vehicle “blocks or impedes the normal movement of traffic” and prohibits entering such a vehicle (Section 5(A-B)). Along the same lines, the section makes it illegal for an undocumented worker to “solicit work in a public place or perform work as an employee or independent contractor” (Section 5(C)). “Solicit” means “verbal or nonverbal communication by a gesture or a nod.”
Section 7 forbids employers from “intentionally employ[ing] an unauthorized alien” even when the employer “intentionally contracts… with a person who employs or contracts with an unauthorized alien to perform the labor” (Section 7(A)). Intent to comply with the law can be demonstrated with “proof of verifying employment through the E-Verify program” (Section 7(I)). Any individual can file a complaint against the employer with the attorney general who “shall not investigate complaints that are based solely on race, color, or national origin” and must verify the “alien’s immigration status or work authorization status… with the federal government” (Section 7(B)). Persons who file false or frivolous claims are guilt of a class 3 misdemeanor.
Businesses found in violation “shall terminate the employment of all unauthorized aliens” and during three year probationary period “shall file quarterly reports… with the county attorney of each new employee who is hired by the employer” (Section 7(E)). Courts “may order the appropriate agencies to suspend all [business] licenses” for up to ten days, and for a second offense (while on probation), to “revoke all licenses.” Counties must “maintain a database of the employers and business locations” and publicize those businesses “on the attorney general’s website” (Section 7(G)). Section 9 requires that “every employer, after hiring an employee, verify the employment eligibility of the employee through the E-verify program.” Employers who fail to comply are ineligible to receive economic development grants” (Section 9(A-B)).
Courts have already upheld provisions criminalizing transportation and harboring of undocumented aliens (Section 5), the seizures of vehicles involved in such transport (Section 10), and on a separate occasion, upheld the E-Verify mandate. The Obama administration has also not contested the law on the basis of racial discrimination (as the ACLU has). Courts have placed injunctions on 4 Sections of the law pending the Supreme Court’s decision: Section 2(B), requiring state and local agencies to enforce immigration laws; Section 3(A), requiring aliens to carry documentation; Section 5, making it a misdemeanor for an undocumented alien to work or apply to work; Section 6 allows police to arrest suspected undocumented workers without a warrant. The most likely to be struck down is Section 3 given that Congress has never criminalized work by undocumented workers.