What Is SB 1070; Why Is It Understandable, Yet Wrong; And What is the Solution

October 2012 - By Shahzad Ahmed with NeJame Law

With the Supreme Court's ruling striking down much of Arizona's SB 1070 law, the debate lingers. So who is correct? Is Arizona correct in criminalizing unlawful presence within its borders, or did Arizona usurp too much power in passing this law? This debate isn't easy and emotions can run high on both sides.

What is SB 1070? 

The SB 1070 sections which were stuck down by the Supreme Court did the following:

  • Made failure to comply with federal alien-registration requirements a state misdemeanor
  • Made it a state misdemeanor for an alien to seek or engage in unauthorized employment by an alien in the State a misdemeanor
  • Authorized state and local officers to arrest without a warrant a person "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States".

The Court left standing the fourth provision: Section 2(B) which requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person's immigration status with the Federal Government. This is known as the "show me your papers" provision. The Court stated that in the future it would be willing to entertain any claims that the implementation of this section is inviting racial profiling.

Why is SB 1070 Understandable, yet Wrong! 

After learning what is SB 1070, let us evaluate its necessity. First, while some people's opposition to immigrants is motivated by prejudices and is wrong, on the other hand, it is important to acknowledge the reasonable sentiments of the Arizonians. Many citizens reside in states facing a high influx of illegal immigrants, arguably affecting their economies and sometimes, even their safety. Especially in economically challenging times, these concerns cannot be taken lightly.

Second, on the other hand, there are young children who were brought here against their will and know of no way of life other than our country, and contribute, and have the potential to contribute, to our society. Many immigrants perform labor under very difficult conditions which most citizens are not willing to do.

Thus there are equities on both sides of this equation.

However, any solution must be properly tailored to address the root of the problem. SB 1070 was an overreach by the Arizona legislature. The Supreme Court acted properly by striking down the three sections which violate the Supremacy Clause of the Constitution which prohibits the States from regulating in an arena which the Federal Government has authority. It is a well established principle of over a hundred years that the Federal Government has the authority to regulate immigration.

Further, in my opinion, the implementation of Section 2(B) (the "show me your papers" provision), requiring an officer to verify the immigration status would have the officer perform impermissible profiling. Thus, the Court should have struck down this section as well. In my opinion, this section will be eventually struck down.

What is the Solution?

However, what about the concern of the many Arizonians? Why should they have to pay the price for the Federal Government's failure to control illegal immigration effectively? Well, we need to urge Congress to pass properly tailored remedies for our immigration problem. For example, we need to urge Congress to repeal the infamous "3/10 year bar", which mandates that an alien unlawfully present in the U.S. for a certain time, will be barred for 3 or 10 years upon departure from the U.S. This backward law punishes the aliens for doing the right thing, i.e. departing the U.S. after accruing unlawful presence for a certain time. This provision is the primary reason why many illegal aliens do not leave the United States. Similarly, Congress needs to pass immigration reform that makes sense.

Thus, SB 1070 is wrong, but the concerns behind it are real, and we need to work toward a new consensus on immigration reform that makes sense and is properly tailored to the problem.