I read much of it, before it was subsequently amended.
I found a couple of provisions troubling, beginning with the triggering provision which allowed the actionable elements to spring into action on "any lawful contact." The term lawful contact was not defined, hence, leaving it open to law enforcement officials to determine what is a lawful contact.
agreed that it is vague. and left vague, the opportunity arises for misuse. but inherently racist?
death penalty laws are unevenly applied, so the application of the law may be racist. but he law itself?
Racist law. A misnomer.
Instead of asking whether the law is racist, I think the question or focus should be on whether the law is discriminatory. The term "Racist" is subjective and its interpretations and meanings differ in the minds of different beholders. I prefer asking whether a law is itself discriminatory or whether the law has a discriminatory effect, as they both reach the same result.
I understand that there may be a point to your "is the law racist" construct, but I believe the question is whether the law impermissibly treads on a liberty or property interest; or whether an enactment treats or threatens to treat people who are otherwise similarly situated differently because of race, ethnicity, gender, etc.
Vagueness. I don't think a "vague" law can be dismissed by saying,
"agreed it is vague . . . and left vague, the opportunity arises for misuse. but inherently racist?"
I believe I am correct in saying that any law, the violation of which will subject the lawbreaker to a loss of liberty or property MUST BE EXACT in what it requires. A law that is not exact and leaves police or enforcement personnel to determine what it means is vague and, therefore,
unconstitutional.
If it is vague on its face (as I surely thought the 'lawful contact' language tended to make the Arizona Act), and we we can plainly see that someone will be harmed, we don't have to, and shouldn't, wait until someone is harmed. Such a law should be struck down BEFORE it causes harm.
A provision as pivotal as "any lawful contact" which brings one within the ambit of the Act must be definite and determinable, not from the whims of any given law enforcement official, but from an objective standard where everyone knows what conduct is a "lawful contact" which may subject one within the scope of challenge of immigration status.
beyond the issue of what constitutes "lawful contact" is how one meets the threshold to establish that "reasonable suspicion exists that the person is an alien who is unlawfully present in the US."
for example, would a home depot parking lot where undocumented workers are known to be hired satisfy mere reasonable suspicion?
would one have reasonable suspicion to check all the workers at a job site where the hiring authority has a lengthy prior history of hiring undocumented aliens?
but even still, is this question of legal definition an issue of racism?
Of course, your Home Depot scenario tells me that you clearly understand the issues here.
With respect to whether this is a
question of legal definition [or] an issue of racism?" may be something I can't answer. As I said above, I prefer not to use the "racism" analysis because the term is, in my opinion, inherently deficient. It doesn't matter whether someone thinks, subjectively, that a law is racist or that people with racist intent enacted the law. The question is whether the law is facially discriminatory or whether it has a discriminatory effect.
so if a traffic officer queried ICE or DHS routinely on every vehicle stop (as opposed to subjectively selecting targets of inquiry), would it eliminate the spectre of racism from the law?
An interesting question, indeed.
If I understand your point, I believe you're saying that if an immigration query is made on EVERY STOP of whites, blacks, hispanics, green people, etc., would that make the law non-discriminatory and pass Constitutional muster.
I can't say that I know exactly whether your "Every Stop Query" would pass constitutional analysis. I am troubled by the whole idea of the "Immigration Query".
- The term itself calls for an inquiry into whether a person is legally here.
- Americans are not required to walk around with proof of citizenship.
- Our Constitution presumes one born in this country to be a citizen -- and I am not aware of any law which requires any American to walk around with his birth certificate, in pocket.
- And, I don't know of any law which requires every American to be in some national citizenship bank.
Hence, any law which places a burden on Americans to prove citizenship, on demand, may be itself, unconstitutional.
I know I switched the query from one of immigration (which deals with whether one has entered and remains here in contravention of law) to one of citizenship (which deals with the presumption of legitimacy of each person born or naturalized in the U.S.). But I don't see how you can go about on an "Immigration Hunt" without stepping on the "Presumption of Citizenship."
Do I support illegal immigration? Absolutely not. I simply believe that we must employ "Constitutional" means to deal with the problem and I am firmly against using unconstitutional means to accomplish constitutionally permissible goals. Today its them (whoever they may be). Tomorrow it may be me/us. You have to be careful what you ask for, you just might get it!
QueEx
but thats just me
