June 29, 2011
For the first week’s post on Arizona’s “business death penalty” law, click here.
For the second week’s post on California’s tuition benefits laws, click here.
For the third week’s post on Georgia’s new immigration law, click here.
For the fourth week’s post on states criminalizing unlawful residency, click here.
Unfortunately for Indiana, the law may have been saved if it weren’t written to be so overtly unconstitutional.
The first of these provisions provides police officers with unconstitutionally-expanded powers to make arrests.
Specifically, without regard to whether the individual was already subject to a lawful arrest, an arrest could be made if the officer has…
- a removal order issued for the arrestee by an immigration court; or
- a detainer or notice of action for the arrestee issued by the U.S. Department of Homeland Security; or
- probable cause to believe that the person has been indicted for or convicted of one or more aggravated felonies.
The third scenario should strike anyone familiar with criminal procedure as flying in the face of the Fourth Amendment.
Why? It allows for arrests without any probable cause that criminal activity has taken place.
The first two are also in violation of the Fourth Amendment.
Because neither scenario involves a criminal offense, the new provisions would allow for arrests where no criminal activity is even suspected to have taken place.
Clearly, that’s unconstitutional.
The court found a reasonable likelihood of the plaintiffs’ success on the merits (a required finding to issue an injunction) just on those Fourth Amendment concerns, but still went on to analyze the ever-popular preemption arguments, too.
Again, though, the court sided with the plaintiffs, finding that there would be plenty of problems with the enforcement and execution of the law that would create pronounced conflict with federal immigration regulation.
The other provision enjoined by the court would have criminalized knowingly accepting or offering a consular ID (CID) card as a valid form of identification, except as done by police.
Most people are unaware of the role that CIDs play in the immigration debate.
CIDs are issued by national governments for citizens living in foreign countries.
They are often used as forms of ID by undocumented aliens since they typically cannot secure other types.
The problem is, while the state government is allowed to refuse CIDs as acceptable forms of ID, a total ban, even between private parties, would actually render them ineffective.
This would be a problem because the recognition of CIDs is protected by the Vienna Convention of Consular Relations, to which the U.S. is a signatory.
An individual state doesn’t have the power to revoke any portion of an international treaty ratified by the U.S., which the court ruled this Indiana law essentially does.
In the end, both of these provisions may have been saved with some better bill-writing.
Such a thing isn’t inconsequential either, since some crafty phrasing in a law saved Arizona’s from invalidation earlier this month.
Would a better written law have survived a legal challenge?
That’s hard to say, but with there being no shortage of states looking to take immigration matters upon themselves, we may find out sooner rather than later.