For some strange yet supposedly valid reason, a coalition of groups — including Action NC, Bonilla Community Services, Immigrant Solidarity Committee and St Peter’s Catholic Church – rallied in Charlotte on Thursday to protest Arizona’s immigration law. According to some of the organizers, the Arizona laws on the books are “racist”, and they “unfairly criminalize Hispanic people”. In lockstep with the recent (and somewhat obtuse) ruling in federal court, the protesters also argue that the law violates concepts of federal preemption.

Allow me to make a few comments.

First off, let me say that as a general rule, I don’t like protests. Arguing against things you do not like is fine, and protesting is sometimes a valuable tool that is conducive to argumentation. In the modern era, however, most protests seem to be more about chanting and obstinacy rather than actual debate. Going out in the middle of Charlotte and chanting with signs does very little other than harass local citizenry and make the participants feel better about themselves. As a general rule, well worded, much quieter arguments tend to be the most potent.

But allow me to address the law itself.

The Arizona immigration law is a tough law to discuss because the contours of it make it difficult to grasp for the average person. On one hand, militant Republicans are willing to fight tooth and nail to defend it without fully understanding that parts of the law are decidedly weak and problematic, virtually begging for repair. On the other hand, however, militant Democrats lob words like “racist” and “exclusionary” at the law without even reading it (or the requisite amendment), making grandiose presumptions about the nature of the law without truly understanding what it entails.

Before I begin discussing the finer details, allow me to provide a very simplified synopsis of Arizona immigration law and pertinent Federal immigration law:

• According to federal law, legal aliens over the age of 18 in the US have to carry papers (specifically, registration documents) with them at all times. This is common practice for many countries — I was required to do this in Japan, and ironically, it is required in Mexico.
• The Arizona Law (Arizona SB 1070) makes it a misdemeanor to be an alien without carrying these documents.
• During a “lawful stop, detention or arrest”, police are to, when possible, check the detainee’s immigration status, specifically when they have “reasonable suspicion“ that person is an illegal alien.
• Anyone who is arrested will have their immigration status checked before they are released.
• Arizona HB 2162 amended this legislation shortly after the SB 1070 bill came out, specifically requiring that “prosecutors would not investigate complaints based on race, color or national origin” and emphasizing that officers could only investigate immigration status based upon a “lawful stop, detention, or arrest [...] in the enforcement of any other law or ordinance of a county, city or town or this state”.

Naturally, the best thing you can do is to simply read the bill (and the amendment) and skim over the relevant Wikipedia entry, the latter being naturally somewhat academically questionable, but sufficiently controversial to warrant some degree of credibility.

Okay, let’s address this thing straight on.

The Arizona Law is clearly intended to put a system in place to allow police officers to check the immigration status of citizenry whom they feel may be illegals. This is a fairly reasonable desire on the part of Arizona lawmakers — one can easily imagine that there are many instances in which the Arizona Police Department(s) suspect an individual is an illegal alien, but cannot do something to stop it. However, obviously to ensure that police officers do not stomp around carding everyone in sight, the law requires “reasonable suspicion” and a “lawful stop, detention, or arrest”. To furthermore vouchsafe against race-based harassment, the amendment clarified that investigations would not be held based on race/color/origin, basically meaning an officer cannot demand information simply based on the fact that someone appeared to be Latino and had no papers.

As many Democrats point out, there is possibly an issue here: this law leaves a considerable amount of power in the hands of police officers. The issue arises from the nature of the conditionals placed upon the officer — specifically, the nature of a “reasonable suspicion” and a “lawful stop, detention or arrest”. These conditionals appear to indicate that a police officer, with a “reasonable suspicion” that someone is an illegal, could arbitrarily stop/detain/arrest that person and require papers — which would have been a plausible scenario under the original copy of SB 1070. However, this presumption is invalidated by amendments via HB 2162, which emphasize clearly that the stop is to be made “in the enforcement of any other law or ordinance of a county, city or town or this state” — meaning, basically, that an officer can only check for immigration status if the person in question is being stopped or detained and the officer has “reasonable suspicion”, or if the person is arrested (in which they are investigated regardless of suspicion).

So the long and the short of it is that the Arizona bill requires that the suspected illegal in question has to be detained for something specifically other than being a potential illegal in order for police officers to have the right to investigate their immigration status. Most Democratic pundits (and uneducated/unwilling protesters) who argue otherwise have either simply not read the bill or are not aware of HB 2162, which was passed on 30 April 2010.

This does not entirely clear up the race issue, however — the “reasonable suspicion” issue still stands. According to United States v. Brignoni-Ponce and Arizona v. Graciano, because of the high percentage of illegals who happen to be Mexican (especially in Arizona), the appearance of Mexican ancestry can be a factor (but obviously not an exclusive factor) that would compel a police officer to check an alleged illegal’s immigration status. While HB 2162 specifically notes that “prosecutors would not investigate complaints based on race, color or national origin”, it does not entirely exclude the possibility that an officer might use race, color, or national origin as one of a few reasons to comprise “reasonable suspicion”.  This, though it sounds racist, is actually fairly logical in application — like it or not, statistically, especially in Arizona, the majority of illegals are going to be of Hispanic/Latino appearance, meaning that, given other evidence, appearance may be a persuasive factor. Much more vague “reasonable suspicion”s are used in justifying frisking a suspect in an average terry stop (Terry v. Ohio).

So, here’s the million dollar question: would this impose an unfair burden on legal citizens? The answer is possibly. Let’s address some hypothetical situations.

One of the major arguments is that it is unfair for Arizona to expect legal immigrants to carry “papers” at all times. Ironically, this is not an Arizona law:

“Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section.” USC: Title 8, Chapter 12, Sub Chapter II, Part VII, SS 1304

So that argument is entirely off the table. Arizona is simply acting based upon established federal law.

However, a more plausible argument exists — what if a legal alien (or a normal citizen) is detained as a result of not having proof of identity? The detainee could possibly sit in a detention center for days waiting for the federal government to send citizenship information.

While this argument is plausible, it does not entirely hold up to scrutiny — all of these immigration checks are required to be done in addition to a stop/detention/arrest resulting from (the possibility of) another crime. This means that to get into such an unlucky situation as what I mentioned, a citizen would have to be suspected of a crime (or otherwise stopped pursuant to a law or a crime) AND not be in possession of relevant paperwork proving his identity. For legal aliens, lacking this paperwork is illegal anyway, pursuant to the Title 8 law cited above. Even for legal citizens, in most realistic cases, after being stopped regarding the possible violation of a law, lack of relevant identification — particularly if the citizen was stopped while driving — would be questionable.

Even if a citizen did manage to screw himself into such a horrible situation, HB 2162 specifies that “[t]he court may award court costs and reasonable attorney fees to any person[...] of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section” — meaning, in short, that the person detained would not only be allowed to bring his case to court, but he or she would also be compensated for doing so, pending the citizen won. This argument also presumes that the federal database would take a significant amount of time to return immigration status to Arizona. If a police officer can check immigration status remotely at a traffic stop, we can safely presume this process takes only a few minutes tops, meaning prolonged detainment as a result of bureaucratic slowness is unlikely.

There are other fairly valid arguments against the law. Some stipulate that the law violates the Supremacy Clause by attempting to bypass federal immigration law, which was one of the main arguments held by the federal court. This seems like an interesting argument, but a highly tenuous one — while there are doubtless good arguments on both sides, it seems strange that the law would be considered a bypassing of immigration law when it largely seems to attempt to enforce federal immigration law (specifically the requirement for identification and the ability to check immigration status with the federal government). Also, some have argued that the law violates parts of the Fourth Amendment vis-a-vis unreasonable search and seizure — an interesting argument, but yet again one possibly invalidated by the requirement that those investigated be suspected of another crime. Some additionally argue that the law violates the Fourteenth Amendment by means of being “impermissibly vague” — something that is at least cognizable, but really something only trained legal eyes (far beyond my ability) and debate could determine.

But really, there are a lot of terrible arguments. One argument states that the law violates the First Amendment (specifically Freedom of Speech) by scrutinizing citizens based on their speech (i.e. if they speak English or not). Many continue to argue that the law violates the Fourteenth Amendment and the Equal Protection Clause by means of subjecting minorities to stops/detentions/arrests based on their minority status — of course, an argument invalidated by the fact that a stop/detention/arrest would require a core basis other than ethnicity to allow police officers to check for immigration status.  Another argument vaguely implies that the law inhibits the freedom of travel without being stopped/questioned/detained — of course, like the above, being invalidated by the fact that the citizen in question would have to be in suspicion of violating another law in order to be stopped/questioned/detained in the first place. Finally, and perhaps most hilariously, some pundits argue that police officers would be allowed to “harass” minorities based on this law — an assumption invalidated not only by the conditions placed upon the law itself, but also by the fact that the aforementioned minorities would have the legal right to complain (or outright sue) if they had a valid complaint.

So what can we learn from this discussion and analysis? First off, the Arizona immigration bill (at least post-HB 2162) is not that bad of a bill. It is not “racist” or “exclusionary” — it is a tool that allows officers, when detaining someone for a potential crime specifically not related to immigration status, to check for immigration status. It is a defined strike against the plague of illegal immigrants committing crimes. While many arguments against the law sometimes are plausible, the biggest and loudest one — namely, that it unfairly discriminates against minorities and legal immigrants — are not even remotely cognizable. Again, read the (amended) bill for yourself. It is not nearly as scary as you might think.