Does the Outcome in Arizona v. United States Matter?


Writing at Forbes, civil liberties lawyer and occasional Reason contributor Harvey Silverglate argues that "when it comes to immigrants' rights, the outcome of Arizona v. United States is less important than you think." According to Silverglate, that's because even if the federal government succeeds in having four provisions from Arizona's controversial immigration control law S.B. 1070 struck down,

we have enshrined into law a series of oppressive violations of immigrants' rights that are unlikely to disappear no matter which side wins, and which are far more important and troubling than overly zealous enforcement of existing federal law in a given state.

While we refer to them as 'illegal' immigrants, immigration violations are not, technically, criminal; they are civil violations (think speeding tickets, only much more serious) with exile instead of a mere fine as the punishment. Due to the civil nature of the offenses, a number of basic protections and procedures available to suspected criminals simply do not exist for suspected illegal immigrants. For instance, if a police officer knocks on the door of your house and wishes to search the premises, she usually must have a warrant signed by an impartial third party, typically a judicial officer of some kind. Not so for an illegal immigrant: Immigration and Customs Enforcement officers themselves, and not a judicial third party, may issue their own search warrants. Moreover, since the warrant is not a "criminal warrant" but rather an "administrative warrant," the standard for justifying the search—the so-called "probable cause"— is much lower. This would be the equivalent to warrants' being drawn up by police lieutenants operating on hunches; overzealous enforcement and improper searches would seem inevitable. But such inevitability is irrelevant for illegal immigration cases: there is no "exclusionary rule" for evidence gathered in violation of traditional constitutional norms. Anything gathered by law enforcement, even if obtained unconstitutionally or otherwise illegally, can be used in a deportation proceeding. Contrast again with criminal law, where evidence wrongfully obtained is almost always inadmissible.

Read the whole thing here. Read my report on last week's oral argument in Arizona v. U.S. here.

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  1. Of course this case doesn’t matter to people that aren’t subjected to its consequences. It only matters if you look Hispanic or in the country illegally.

    1. What are its consequences? No one is claiming that the actions taken by Arizona aren’t legitimate. They’re just claiming that the authority of Arizona to take those actions isn’t legitimate.

      Ultimately, the actions themselves will remain Constitutional. In the unlikely event that the Federal government wins it’s case, immigrants will still be subject to the capriciousness of Federal law.

    2. here comes the oh-so-predictable race card again. If being hispanic matters, it could be because the overwhelming majority of illegals are hispanic. If it were millions of folks streaming across the northern border, demanding that everything be done in French as well an English, the situation would not be improved.

      Perhaps the govt ought to focus its efforts on those who hire illegals. As it is, AZ is calling out the feds for not enforcing their own laws.

    3. Yes, it is unfortunate that most illegals are Mexican citizens and look Mexican because they are Mexican. What to do, what to do?

  2. Sounds like they have a LOT of yahoos out there in AZ lol.

  3. cheapest solution is to place landmine signs in spanish & english (no actual mines) then chunk some unclaimed hispanic bodies here n there to desiccate. >those juans not deterred we want here anyway

    1. Now that is pretty funny right there.

      1. Now if he would only write it in English.

        1. Your comment is actually funny

    2. Not gonna work. As soon as it gets out that there are no landmines people will cross. Better deterrent is to sprinkle a few mines here and there to increase the uncertainty factor.

      1. well then shotgun those unclaimed bodies for double-barreled uncertainity

  4. I’ve always been amused by the shock and horror expressed over this.

    First, these laws are not at all uncommon. I believe CA has one that is similar to Arizona’s.

    Second, as noted, what this law mostly does is authorize local cops to act just like federal cops. Teh horror!

    1. …authorize local cops to act just like federal cops.

      Require local cops to act just like federal cops, under threat of lawsuit from any citizen who cares to file.

      Somehow the Great State of Arizona is smarter both than the federal government above it and the localities below it about just how aggressively particluar laws should be administered.

      Nothing particularly unconstitutional about that. Only obnoxious.

  5. Somehow the Great State of Arizona is smarter both than the federal government above it and the localities below it about just how aggressively particluar laws should be administered.

    Hard to pick which of the three is likely to be the smartiest.

  6. While we refer to them as ‘illegal’ immigrants, immigration violations are not, technically, criminal; they are civil violations

    Yes, and civil violations are still illegal, so they still illegally immigrated.

    with exile instead of a mere fine as the punishment.

    By definition, you can only exile someone from his country. The punishment is return to their home country, not exile.

    This is not academic. At this point, Mr. Silvergate has lost his chance of convincing large numbers of readers, no matter how horrible the abuses he describes next. Because instead of straight talk, he’s engaged in transparent manipulation. They will assume that what follows next is not a recounting of abuses of immigrants, but rather merely further abuse of the English language. Because, they reason, if Mr. Silvergate thought his case convincing on the merits, he wouldn’t have to engage in such emotional slanting of the issue.

    Using rhetoric that causes neutral and thoughtful people to believe you’re trying to emotionally manipulate them is stupid .

  7. How come whenever immigration comes up on H&R it feels like almost all of the comments come from a conservative rather than a libertarian POV?

    Is it just me?

    You guys believe in facilitating freedom of movement correct?

    1. Yes, they do.

      However in this case, that view is tempered by the facts in the case. The Feds are going after a state for reasons that are very difficult to defend. Like was said in earlier comments, there is little difference at all between the AZ law, and federal law, as well as the laws in a few other states.

      Most here, it seems to me, would prefer that states have more freedom to govern without the feds, leading them around by their noses.

  8. I’ve always thought the exclusionary rule was simultaneously too much and too little as a way to preserve privacy.

  9. Yep, the Constitution isn’t terribly friendly when it comes to illegal immigrants.

    1. Indeed, the Constitution doesn’t say anything about illegal immigrants at all!

      But certainly you are right with regard to the terrible way that the federal government abuses the rights that the Framers tried to secure by claiming that civil or administrative law circumvents the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments.

      1. Enh… the Framers also wanted Congress to have plenary power over non-Citizens inside of the United States. This is law that goes back to the 30 years war probably and was well known to the Framers when they wrote the Constitution and then amended it with a Bill of Rights.

        If the Federal government was violating the rights of illegal immigrants by deporting, that’d be news to the Supreme Court.

  10. While Violating our soverign borders may Only be a civil infraction, Most if not All ILLEGALS graduate to other Crimes once here, And ID Theft, stealing SSI’s are a 3rd Degree FELONY & I’m tired of lib’s acting as though these ILLEGALS are all ‘sweetness & light’, they ARE Criminals……nuff said!!!!!!!

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