Legal analysis of SB 1070 highlights law’s flaws

LatinaLista — Tomorrow there’s going to be a showdown at the White House. Arizona Gov. Jan Brewer and President Obama are going to sit face-to-face and discuss the infamous SB 1070.

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The exchange is predictable — Obama opposing the law, Brewer supporting it. Obama reiterating that it’s “misguided” and Brewer saying it’s necessary since Washington won’t do anything to enforce immigration laws.

Brewer has to know that as many city councils and organizations that have declared boycotts against her state and have staged marches outside her office window, since she signed the bill into law, that it doesn’t matter where she goes, protests will follow.

(Photo: Wong/Getty; Tingle/AP)

Tomorrow is no different.

While she’s at the White House, she’s going to have to decide which will be worse, Obama’s steely gaze or the shouts from the planned protest to be held outside the White House gates during the meeting.

It may be a toss-up.

No matter how much Brewer defends her signing of the bill, her reasons do and will pale as more and more academicians and professionals analyze it and voice their concerns.

The latest concern comes from an Arizona doctor:

Dr. Lucas Restrepo of the Barrow Neurological Institute in Phoenix said because it specifies that anyone who “harbors” an illegal immigrant can be fined, it could affect medical personnel.

“The new Arizona state immigration bill signed into law on April 23 will seriously obstruct, if not undermine, the practice of medicine in the state of Arizona,” Restrepo wrote.

“One interpretation is that health care providers in Arizona will need to ask for a passport before seeing certain patients,” he said.

Brewer and the state of Arizona face an onslaught of legal challenges over the new law but she tells CNN that she isn’t worried. She has confidence that she will prevail.

Maybe that’s because she didn’t do a background check on the guy whom she entrusted to author this infamous bill.

According to an Arizona Republic piece, the guy who wrote the bill has a lousy court track record in defending past immigration measures that he wrote.

How lousy?

Lousy enough that the cities for whom he did craft punitive immigration measures suffered losses in court when their measures were struck down. The cities ended up losing millions of dollars in court fees.

It’s a scenario that Arizona can least afford.

If Brewer doesn’t think it can happen in Arizona then maybe she needs to review an analysis on the bill done by several law professors from Arizona schools of law, which shows that there is no way this law is legally acceptable.

 

 

According to Arizona Senate Bill 1070: A Preliminary Reportby Gabriel J. Chin, University of Arizona James E. Rogers College of Law; Carissa Byrne Hessick, Arizona State, Sandra Day O’Connor College of Law; Toni M. Massaro, University of Arizona College of Law; and Marc L. Miller, University of Arizona – James E. Rogers College of Law, SB 1070 creates new Arizona immigration crimes, new immigration-related police powers and responsibilities and does indeed authorize racial profiling.

Some further highlights of the analysis are:

Although public officials have stated that the legislation prohibits racial profiling and that profiling is not otherwise legal, these statements are not consistent with the text of the statute or with existing law.

How can the police tell if someone is undocumented?
They can ask. The police need no reasonable suspicion or probable cause to ask any question of any person, so long as officers do not create the impression that answers are required. So a common way for the police to determine immigration status will be for them simply to ask an individual where they were born and how they got to the United States.

 

SB 1070 does not simply mandate the enforcement of federal criminal and civil immigration laws. It creates new state crimes with different elements than similar federal crimes, it creates mandatory penalties that are different than the discretionary penalties in the federal statute, and it appear to remove the policing and prosecutorial discretion which is inherent in federal immigration enforcement.

While probably not the intention of the legislature this statute has extremely limited application because it is tied to federal statutes which are difficult to violate. This statute is not violated simply because the defendant is undocumented or removable; the defendant also must be “in violation” of one of two specific federal statutes 8 U.S.C. § 1304(e) or § 1306(a).

Overall, this analysis illustrates that there are more problems with the law than what is right with it. Brewer could save her state a lot of money if she promoted repealing the law and working with DC in getting immigration reform addressed.

She could start by telling both her senators to get off that “dang” fence and start working on it.

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