The Supreme Court's decision on Arizona v. United States made for interesting reading as a discussion of states' rights. While the 5-3 ruling left intact just one major provision of the Arizona immigration enforcement effort, the discussions seem to leave even that provision in question.
The provision, section 2(b), requires Arizona law enforcement officers to inquire on the citizenship/immigration status of everyone they detain for any other reason. In allowing that provision to stand, the Supreme Court majority rejected provisions that allowed enforcement officers to arrest a detainee not able to provide clear proof of legal status in Arizona. The court decided that Arizona does not have authority to criminalize an offense - that of being an undocumented alien - when federal immigration laws treat it as a civil violation. That is a key in the Supreme Court deciding that Arizona (and all other states) don't have authority to initiate the kind of personal identification standard practiced by authoritarian governments through the ages. Hopefully, it would also decide that the federal government cannot do so without infringing on individual rights, but that's not all that clear.
The Arizona law as signed by Gov. Jan Brewer would have allowed state enforcement officers to arrest anyone those officers held to be suspect - simply for being unable to prove that they were United States citizens or otherwise legitimately in the U.S. It doesn't take much to envision the potential for scenarios out of bad B-grade movies in which Gestapo or NKVD stop individuals to demand "their papers." All it takes is a law requiring individuals to prove their identities while traveling within a state to raise the potential for police abuse of individual rights.
An officer implementing a law that subverts individual rights to the interests of the government has significant discretion in deciding there is "reasonable suspicion that the person is an alien and is unlawfully present in the United States." Then the suspect would bear the burden of proving legal status, not the Arizona authorities.
Had the Arizona law been upheld, a Hawaii driver's license would not have been sufficient to prove legal residence in the U.S. Arizona's state government, it should be noted, refused to accept Hawaii's governor's statement that Barack Obama was born in Hawaii without additional evidence - based on a vague claim of evidence of fraud in Obama's Hawaii birth certificate. A driver's license, in any case, is not evidence of legal status as a U.S. citizen.
A Hawaii resident choosing to travel through Arizona might have been required to carry a passport to avoid the potential for arrest on suspicion of being an undocumented immigrant.
In its decision, the Supreme Court noted that there are limitations on federal officers for arresting an individual suspected of being an undocumented immigrant.
"As a general rule, it is not a crime for a removable alien to remain in the United States," the court's majority said.
In noting that undocumented presence in the U.S. is a civil matter, the majority opinion adds:
"A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation's international relations."
There are reasons federal enforcement officials would not give high priority to dealing with an undocumented immigrant.
Arizona, in contrast, would treat all immigrants the same and draw into the same net those of us who don't fit within Arizona police definitions of who is clearly a U.S. citizen.
* Edwin Tanji is a former city editor of The Maui News. He can be reached at hakumoolelo@earthlink.net. "Haku Mo'olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.
