The Volokh Conspiracy
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You Might Want to Read More Sentences of Arizona v. United States
A response to Josh Blackman on the new Texas immigration enforcement law.
In his post below, my friend and co-blogger Josh Blackman writes that there is only one sentence of Arizona v. United States that you need to know to answer whether federal law clearly preempts the new state Texas immigration enforcement bill. Here's the sentence:
There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.
Josh reads that as indicating that Arizona does not clearly conflict with the Texas law. On his reading of the sentence, this is a question left open by Arizona, with Texas fairly raising an interstitial question ripe for litigation that could go either way.
But I don't think that's what the sentence says or means.
The power to detain a person to investigate a crime based on mere "reasonable suspicion" is just a power to very temporarily detain them. It's a Terry stop authority, giving officers, say, 20 or 30 extra minutes to check out what is going on. That power does not allow the government to detain someone for much more than that time, or to bring them to a new place. Under Dunaway v. New York, that kind of stop is an arrest as a matter of Fourth Amendment law, and that requires probable cause.
As I read that one sentence, all it did was leave open whether a state is allowed to add on that extra 20-30 minutes or so to investigate an immigration offense.
I'm not an expert in the new Texas law, but it does not seem to be a Terry stop law. It appears to authorize arrests, which is a different ball of wax in the law of criminal procedure. As I recall, arrests were dealt with in another part of the Arizona decision, Section IV(C), which ruled that the Arizona law allowing arrests for committing removable offenses was preempted.
If we're looking for the one sentence from Arizona to read on that issue, this one seems particularly relevant:
By authorizing state officers to decide whether an alien should be detained for being removable, § 6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.
Of course, I wouldn't just read that one sentence. But Section IV(C) seems like an important section to focus on, not the one sentence about Terry stops.
