In 1941 the Supreme Court overturned a Pennsylvania law that required noncitizens to register with the state, carry an "alien identification card," and present it to police officers upon demand. The Court said the law conflicted with a federal policy, based on treaty obligations and the constitutional principle of equal protection, that sought to "protect the personal liberties of law-abiding aliens" and keep them "free from the possibility of inquisitorial practices and police surveillance," including "indiscriminate and repeated interception and interrogation by public officials."
U.S. District Judge Susan Bolton cited that decision last week when she issued a preliminary injunction that prevents Arizona from enforcing major provisions of its new immigration law. Although Arizona did not create its own alien registry, its avowed aim of preventing "the unlawful entry and presence of aliens" can be accomplished only by imposing the sort of "distinct, unusual and extraordinary burdens" that troubled the Supreme Court in 1941.
Under one of the provisions that Bolton blocked, police officers who encounter someone they think might be in the country illegally are required to make "a reasonable attempt" to determine his immigration status. This obligation is triggered by "any lawful stop, detention, or arrest," including those associated with trivial offenses such as jaywalking, failing to leash your dog, and biking on a sidewalk.
If the suspect is from one of the 36 nations whose citizens are allowed to visit the U.S. for up to 90 days without a visa—Spain, say—the police can look at his passport to verify his citizenship and see when he entered the country. But those two facts do not necessarily show he is lawfully present in the United States, since the Visa Waiver Program imposes various other requirements: Participants are not allowed to study, work, or represent a foreign news organization in the U.S., and they may not fall into any of several banned categories, including drug addicts, people with communicable diseases, and people with "physical or mental disorders" that pose a danger to themselves or others.
Still, maybe looking at a passport counts as a "reasonable attempt." If an arrest occurs, however, the law says "the person's immigration status" must be "determined before the person is released." That requires checking with Immigration and Customs Enforcement—although even ICE's records are not conclusive, since they may be based on misinformation about an individual's background or plans.
Bolton's injunction, which she issued in response to a lawsuit by the Obama administration, focuses on the concern that such inquiries would "divert resources from the federal government's other responsibilities and priorities," including "national security objectives." But as other challenges to Arizona's law emphasize, investigating the immigration status of anyone suspected of being "unlawfully present in the United States" also imposes a burden on people who seem foreign, especially Latinos who are here legally but are superficially indistinguishable from those who are here illegally.
Because of the mandate to identify unauthorized residents, minor offenses that police otherwise might overlook—crossing in the middle of the street, driving with a broken tail light or slightly above the speed limit—become excuses for stops. Brief stops become long stops. Warnings become citations. Citations become arrests. People who would have been cited and released for a misdemeanor such as marijuana possession, underage drinking, or disorderly conduct are instead locked up until their immigration status can be verified.
In addition to foreign tourists, Bolton noted, these escalating deprivations of liberty would affect asylum applicants, "people with temporary protected status, U and T non-immigrant visa applicants, [and] people who have self-petitioned for relief under the Violence Against Women Act." Even legal permanent residents and U.S. citizens—who are under no obligation to carry Arizona-approved identification but could be detained if they don't—would be subject to "distinct, unusual and extraordinary burdens" because of the way they look and sound. How would that look and sound to people who thought Americans believed in equality before the law?
Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.
© Copyright 2010 by Creators Syndicate Inc.