The complexities of the Arizona immigration law

We’ve had a good conversation on Twitter today about the Arizona immigration law, specifically the question of whether legal citizens could get caught in questions over their citizenship, and — if so — would they feel compelled to carry, say, a passport?

Respondents via Twitter are smart people, pointing out the standards of “probable cause” and “reasonable suspicion” are still in effect and aren’t waived by the law.

And that, of course, is true, but it’s also true that if police want to stop you for something, they’ll often find a reason. Back in the days when I was delivering newspapers before coming to work, I’d get stopped on a fairly regular basis by the police in Woodbury on Radio Drive. Why? Because my tire briefly touched the white “fog line.” That’s what the cops needed to suspect I might be drunk.

Years ago, Minnesota Public Radio reporter Brandt Williams went on a ride-along with some African Americans for a piece on “driving while black.” Here was a typical story:


“I saw a cop come onto Emerson and I looked in my rear-view mirror, saw it was a police officer, I checked my speedometer immediately, I was doing 30. Ok, I’m cool. My license is fine, I don’t have any warrants. Insurance is cool, everything is hunky dory. I shouldn’t have any problems. Well they got behind me. You know, that close, tailgating, following you. You know you feel like they’re scanning you. You’re like ‘Oh, Lord, what are they trying to find out?’ And she pulled me over, it was a female officer,” he recalls.

Eric says he thinks this was an example of racial profiling. He says when he drives he always makes sure his blinkers, headlights and taillights are working. He says he doesn’t want to give police officers an excuse for pulling him over.

“If that’s the line of criticism, then I think people have a problem with police officers, not the law,” Kris Kobach, a constitutional law expert, told Neal Conan on NPR’s Talk of the Nation this afternoon when asked about these sorts of scenarios that make it obvious the issue isn’t decided by probable cause and reasonable suspicion interpretations.

Kobach wrote a column in today’s New York Times defending the law as constitutional.


Over the past four decades, federal courts have issued hundreds of opinions defining those two words. The Arizona law didn’t invent the concept: Precedents list the factors that can contribute to reasonable suspicion; when several are combined, the “totality of circumstances” that results may create reasonable suspicion that a crime has been committed.

For example, the Arizona law is most likely to come into play after a traffic stop. A police officer pulls a minivan over for speeding. A dozen passengers are crammed in. None has identification. The highway is a known alien-smuggling corridor. The driver is acting evasively. Those factors combine to create reasonable suspicion that the occupants are not in the country legally.

And that’s the point of opponents. There are 2 million Hispanic people living in Arizona – 1.5 million of them were born in the United States. Let’s suppose 11 of them were in a van on a church outing? They are now suspects because…..?

Kobach, a former advisor to Attorney General John Ashcroft, says there’s clearly an economic reason for the Arizona law.

“The notion that we should just ignore the fact that we should ignore so many citizens who are out of work, and one way to get them back to work is to be sure they’re not competing with illegal labor,” he told NPR.

The reality is that Arizona is a different beast from flyover country. Laurie Roberts, an Arizona Republic columnist says the law clearly will infringe on the rights of U.S. citizens, she says “chasing landscapers and dishwashers won’t do a thing to keep us safe,” but she says she completely understands why the law was necessary:


It was not so long ago that Napolitano thought that having a Guard presence at the border was crucial to our security. Just two years ago, as the previous administration’s Operation Jump Start was ending, then-Gov. Napolitano pleaded with her predecessor, Michael Chertoff, to leave troops at the border until the “virtual” fence became operational in 2011 (or as it now turns out, never).

“The federal government has no excuse to scale back the program,” Napolitano wrote to Chertoff in March 2008. “Common sense dictates that the drawdown should stop and that a continued high National Guard presence should be maintained.”

A month later, she warned congressional leaders that halting the operation would be “irresponsible.”

And on Tuesday? Not one word about the need for troops on the border.

In fact, Napolitano, with a straight face, actually declared that the border is “as secure now as it’s ever been.”

Which is, of course, precisely the problem.