Does Arizona's Law Make Every Government Employee an Immigration Agent?


Over at The Corner, Linda Chavez notes that Arizona's controversial new immigration law does not just instruct police officers to check the legal status of people they think might be unauthorized residents. That responsibility also applies to any "agency of this state or a county, city, town or other political subdivision of this state." This language seems to mean that all government employees, including public school teachers, dog catchers, trash collectors, and meter readers for municipal utility companies, are expected to be on the lookout for aliens who are unlawfully present in the United States. Should anyone with whom they cross paths in the course of their work arouse "reasonable suspicion," they are expected to make "a reasonable attempt…when practicable…to determine the immigration status of the person."

Since the law apparently deputizes all manner of state and local government employees as immigration agents, the argument that suspected aliens will be investigated only when they've been detained for some other reason cannot be correct. And even if we focus just on law enforcement officials, all that is required is a "lawful contact" plus "reasonable suspicion." Police are free to approach people in public and strike up a conversation; that would be a "lawful contact." As Matt Welch noted yesterday, police can even stop someone and pat him down, ostensibly for their own protection, if they think he may be involved in criminal activity and may be armed; that would be a "lawful contact." And as Steve Chapman noted in his column this week, police can stop motorists for all manner of trivial offenses; that would be a "lawful contact."

As for "reasonable suspicion," the law does not spell out what that means, although it does say an immigration check should not be based "solely" on "race, color or national origin." Regarding the implications of that proviso, Chavez writes:

The whole defense of racial preferences in college admissions and employment rests on the notion that race is simply one of many factors taken into account. But as the Center for Equal Opportunity's studies on racial preferences in college admissions have definitively shown, whenever race is taken into account—even as one of many factors—it always becomes the deciding factor. And it will here as well. We conservatives can't have it both ways: either we're for race-neutral justice or we're not. We can't be against using race when it helps minorities but for it when it harms them—at least not without legitimate criticism as to our motives.

As Chapman argues, it's hard to predict exactly what the law will mean in practice (assuming it is upheld by the courts). But its broad terms give police and other government agents a great deal of discretion in deciding whom to hassle, when, for what reason, and to what extent. "One of the bedrock principles of conservative jurisprudence," Chavez notes, is that "the words of a statute"—and "not simply the drafters' intentions"—"actually matter."