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Can States Regulate Immigration? Part 9
Arizona Senate Bill 1070

27 Apr 2010 in Regulatory Economics, Regulatory Policy, Legislation

Arizona's legislature last week enacted legislation that has garnered considerable press attention and commentary, including criticism by President Obama (New York Times, Fox News, NPR, Real Clear Politics. In a Sunday op-ed published by the Washington Post, Phoenix mayor Phil Gordon says the bill is the product of a "far-right legislature"; that it is unconstitutional; and that it is motivated by "the vocal, spiteful few" who are "bitter, small-minded and full of hate." Gordon and others vow to challenge the law's constitutionality "because of the civil rights being violated and the vagueness of the statute." Colorado Democratic Rep. Jared Polis compares the law with Nazi Germany prior to the Holocaust and says he fears "Arizona is headed for a police state."

Gordon's views seem typical of those views expressed in commentaries published since Gov. Jan Brewer signed the bill into law on April 23. We've seen very few editorials and commentaries supporting the law (e.g., IBD, ).

News stories seem to track this editorial pattern; the AP, for example, uses opponents as its source for fact claims about the law, not its actual text. Meanwhile, published commentary appears to be unrepresentative of public opinion. Pollster Scott Rasmussen reports 70% of Arizona voters favor the law and 23% oppose it.

Today we analyze the text of the bill.

Arizona Senate Bill (SB) 1070 amended various sections of existing law. 

• The text is here.
• Existing law is printed in black.
• New provisions are in blue.
• Deletions of existing text are in red.
• New headers are in maroon.
• New section numbers are in green.

Readers can easily locate the changes to existing law.

We summarize the law's major procedural and substantive provision, then mention a few other provisions that have attracted attention but appear to be minor.

PROCEDURAL PROVISIONS

1. Requires Implementation Consistent with Federal Immigration and Civil Rights

Much of the reported opposition to SB 1070 is founded on claims that it violates federal civil rights law, such as by mandating or inviting "racial profiling." The law explicitly requires implementation to be consistent with civil rights:

This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

[Section 11-1051(K)]

"Racial profiling" could occur in practice, of course, but if it occurred, it would be in violation of the law's express text. As we note in the final section below on the law's incentive effects, law enforcement officers committed to full implementation can do so without violating civil rights but law enforcement officers committed to lax implementation cannot. 

2. Overturns Local Government Actions that Restrict the Enforcement of Federal Immigration Laws

No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of Federal immigration laws to less than the full extent permitted by federal law. [Section 11-1051(A)]

This section expressly denies local governments in Arizona the authority to issue ordinances or policies aimed at preventing the enforcement of federal law. Some commentary has suggested that this is legally controversial, but it hard to understand why. Assisting in the enforcement of federal law is the norm for state and local governments. Choosing not to assist federal authorities in the enforcement of constitutional federal law -- the stated intent of "sanctuary city" ordinances -- is more at odds with intergovernmental comity in a federal system. 

Some Arizona police departments (most notably Phoenix) have enacted policies that clearly impede the enforcement of federal immigration law. Federal authorities cannot deport unlawful aliens that they do not know about.  Thus, while state and local governments often have complained about lax federal enforcement, federal authorities are handicapped by state and local governments that choose not to cooperate.

Under mayor Gordon's leadership, Phoenix revised the police department's Operations Order 1.4 in a manner that forswears assisting with the enforcement of federal immigration law in most cases. (Unlawful-immigration opponent United for a Sovereign America published what is purported to be the text. Judicial Watch says the final text goes beyond the recommendations of an external panel [which it criticized] and which in turn was endorsed by Gordon. We cannot find an authoritative text of Operations Order 1.4 on the city's website.)

Local governments are always and everywhere creatures of the States. Thus, there is no legal obstacle to a State directing its subdivisions to take certain actions and forswear others. Some local Arizona officials object to SB 1070 on various policy grounds, but we have not found any claim that the State of Arizona lacks the authority to decide the extent to which it, and its subdivisions, will assist ICE and CBP. 

There are three additional procedural elements in SB 1070 that follow from this directive. They are (a) a requirement for the notification of federal authorities upon the discovery of an unlawful alien, (b) express statutory permission for local authorities to to assist in transfers to federal custody, and (c) a mandate for local authorities to participate fully in information exchanges with federal authorities.  Each of these steps is a crucial element of the federal enforcement of federal immigration law, and the last of them is statutorily required by federal law. Thus, state and local governments cannot legitimately complain about lax federal enforcement of federal immigration law unless they follow procedures such as these.  Conversely, opponents of federal immigration law can ensure lax federal enforcement by preventing any one of these procedures from being followed. In short, the primary objection to SB 1070 is that it will enhance federal enforcement of federal law.

1. Notification of Federal Immigration Authorities

[Section 11-1051(C)]

This section is triggered only after a law enforcement officer obtains proof that a person is an unlawful alien. SB 1070 requires that federal authorities be notified. Previously, Arizona law enforcement agencies had the discretion not to notify.

Notification of federal authorities opens the link which transfers responsibility for federal enforcement to the applicable federal authority. Only those unlawful aliens who are convicted of crimes are covered. Unlawful aliens who are arrested but not convicted are exempt, though nothing in the law prohibits or prevents an Arizona law enforcement agency from notifying ICE or CBP upon arrest and determination of unlawful immigration status.

2. Removes Barriers to Transfer of Unlawful Aliens to Federal Custody

Notwithstanding any other law, a law enforcement agency may securely transport an alien who the agency has received verification is unlawfully present in the United States and who is in the agency's custody to a federal facility in this State or to any other point of transfer into Federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of this state.

[Section 11-1051(D)]

This section authorizes Arizona law enforcement agencies to transport unlawful aliens to federal custody. The law is permissive rather than directive: law enforcement agencies may transfer unlawful aliens to federal custody, but they are not required to do so.

To the extent that Arizona law enforcement agencies exercise the authority to transport, the link to transferring responsibility to federal authorities is completed without waiting for federal authorities to arrange for transfer.

3. Removes Barriers to Intergovernmental Information Exchange

Information exchanges are essential for the effective federal enforcement of federal immigration law. Interestingly, it is a violation of federal law for state or local governments to interfere with such exchanges:

To the extent that state or local officials have been prohibiting or restricting information exchange with ICE and/or CBP, they have been violating federal law. To the extent that ICE or CBP have not been responding to inquiries from state and local officials, they have been acting illegally, too. The conventional wisdom is that noncompliance with federal law is widespread at all levels of government and never prosecuted. Thus, what SB 1070 does is make noncompliance with federal law by Arizona officials a violation of Arizona law. It does not criminalize violations of federal law committed by federal authorities.

3. Establishes a Duty of Law Enforcement Officers to Verify Legal Presence During Any Lawful Contact

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

[Section 11:1051(B)]

This section is predicated on "lawful contact made by a law enforcement official." Any contact which is not forbidden by law should qualify as lawful. 

Though SB 1070's reliance on it has been widely criticized by commentators for its ambiguity, "reasonable suspicion" is an established, though unquantifiable, legal standard. The same can be said for its more demanding cousin, "probable cause." A 2006 memorandum published by the Congressional Research Service explains:

Thus, complaints of ambiguity in the threshold triggering the duty to verify legal presence are not credible.  Few, if any, of those complaining would object to a "probable cause" standard, which is at least as ambiguous.

4. Adds Violation of Federal Immigration Law to the the List of Crimes that Permit Arrest without Warrant

Previously, Arizona law enforcement officers could arrest without warrant persons they had probable cause have committed felonies, persons who committed misdemeanors in their presence, and persons who committed certain crimes prior to or immediately following a traffic accident leading to arrest. To this list, SB 1070 adds the following:


To invoke this provision, a law enforcement officer would have to already know that the person was an unlawful alien. What SB 1070 does is enable a warrantless arrest.

MAJOR LEGAL PROVISIONS

A common phenomenon in US intergovernmental relations is the federalization of state law. Congress often acts to make certain state law offenses illegal under federal law, thereby creating the predicate for federal prosecution. Oftentimes, there is nothing peculiarly federal about the crime. To take an obvious example, murder is a federal offense (18 USC 1111(a)) that also is a state offense in every US jurisdiction.

SB 1070 is the opposite intergovernmental act. It takes a list of crimes related to federal immigration law and makes their violation state offenses as well. Thus, it creates the predicate for state prosecution of what heretofore have been strictly federal offenses. The clear motive for "reverse federalization" is that the federal government has claimed the authority to regulate immigration but has not vigorously enforced these laws.

1. Makes It a State Crime to Commit Certain Violations of Federal Immigration Law

These provisions are contained in federal law. Failing to carry one's alien registration is a federal crime:
Willful failure or refusal to obtain such a document also is a federal crime:
SB 1070 does not go beyond federal law. It makes it a crime in Arizona to violate federal law.

2. Makes It a State Crime for an Unlawful Alien to Seek Work

Federal law generally makes it illegal "to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien" (8 USC 1324a(a)(1)(A)). It also is generally illegal for an unlawful alien to seek work, and to enforce this federal law Arizona implemented the federal government's e-Verify system through the Legal Arizona Workers Act (2008).

The practical effect of this section is to make it a state crime to violate applicable federal law. This creates the predicate for state enforcement.

3. Makes It a State Crime to Transport, Move, Conceal, Harbor or Shield Unlawful Aliens Under Certain Conditions

Subsection A generally criminalize the aiding and abetting of unlawful immigration, and subsection B subjects persons guilty of such actions to forfeiture of any vehicle(s) involved.  The preface to the list of prohibited acts criminalize these acts only by persons who are "in violation of a criminal offense" -- that is, they must be in violation of another law at the time.  For the most part, this restricts the application of the section to human trafficking. It is possible, however, that persons who engage in any of these activities for ideological reasons may be in violation.

The law has explicit exceptions for child protective services workers and first responders, though this seems superfluous. Presumably, none would be engaged in a criminal activity at the time.

4. Authorizes Citizen Enforcement Against Recalcitrant State and/or Local Officials

This section empowers residents of Arizona to enforce the law independently of the attorney general (who opposes the law) and of county and city prosecutors (some of whom also oppose the law). Ability to pay is not a barrier to standing because subsection (I) authorizes the court to award attorneys fees. Citizen litigators cannot collect damages.

5. Indemnifies Law Enforcement Officers for Litigation Expenses Related to the Performance of Legal Duties

Financial responsibility is assigned to an officer's employer. This has complex incentive effects. It may be intended to discourage recalcitrant officials from impeding enforcement by their employees. However, it may have the unintended effect of discouraging compliance by willing local officials. To the extent that they become strategic targets for citizen suits alleging civil rights violations, the financial burden of defending officers against such claims could become very large.

1. Extends Recordkeeping Requirements Showing Use of e-Verify

Arizona has required use of the federal government's e-Verify system since January 1, 2008, when the Legal Arizona Workers Act became effective. SB 1070 tightens existing law by requiring records of e-Verify use be retained:


We do not know to what extent some employers have been claiming use of e-Verify but could not prove it, or whether such claims were true or false. SB 1070 adds a safe harbor to ensure clarity.

2. Creates a New Affirmative Defense for Employers Against a Charge of Knowingly or Intentionally Employing an Unauthorized Alien

Previously, Arizona law made it a crime to knowingly or intentionally employ unauthorized workers. SB 1070 creates an affirmative defense for entrapment:

12. An employer does not establish entrapment if the employer was predisposed to violate subsection a of this section and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if an employer has proven entrapment.

How often entrapment has occurred in the past is unknown, and likely unknowable, and we also do cannot know the extent to which employers have successfully but falsely claimed entrapment. SB 1070 adds clarity to the defense, though it is unclear how an employer would prove by a preponderance of the evidence that he was "not predisposed to commit the violation" before being "urged and induced" by law enforcement. As we read Arizona law, the only sure affirmative defense is to use e-Verify.

Some employers have complained of entrapment with respect to civil rights violations. The scenario consists of a legal job candidate presenting legal but dodgy-looking identification documents, leading the employer to either demand more proof of legal authorization to work or deny employment on the grounds that the proffered evidence was not sufficient. The use of e-Verify, which is mandated by Arizona law, shields employers from entrapment of this sort, as well.

3. Makes It a Misdemeanor to Block or Impede Traffic for the Purpose of Soliciting or Offering to Provide Day Labor

1. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
2. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

These provisions rely on the state's police power to regulate the use of public thoroughfares and preventing non-automotive activities from impeding traffic. The solicitation of day labor logically impedes traffic, but other non-automotive activities also would do so, and this law does not prohibit them (though other existing laws might). For law enforcement purposes, the law establishes the predicate act for lawful contact that would trigger the duty to determine legal presence.

It is relatively easy for unlawful aliens and prospective employers to circumvent these provisions. All they need to do is move to private property or to public property that is a not a "street, roadway or highway." Both are exempt. For that reason, this provision is unlikely to have any material effect on the market for unlawful day labor.

CAN SB 1070 BE IMPLEMENTED IN A NONDISCRIMINATORY MANNER?

The key to nondiscriminatory enforcement is to treat all persons the same irrespective of protected characteristics. This is easy in circumstances where state law requires that identification be carried, such as operating a motor vehicle. SB 1070 includes specific language specifying what a driver must do to prove legal presence and thereby obviate "reasonable suspicion":

[Section 11-1051(B)]

Arizona could, as a matter of statewide enforcement policy, decide that any person who cannot produce valid identification triggers "reasonable suspicion." If all motor vehicle operators subject to a legal stop who could not produce valid identification were so treated, it would be impossible to state a credible claim of discriminatory treatment based on race or ethnicity resulting from post-lawful contact actions of the law enforcement officer. For the citizen who happened to forget to carry a driver's license, proving legal presence generally would be easy because driver's licenses and motor vehicle registrations are linked in state databases. For the legal alien, a Green Card would suffice.

Law enforcement officers could selectively choose which traffic violators to stop and cite. Complaints of such bias (e.g., "driving while black") are not new, and they have been challenged empirically. SB 1070 does not reduce an unlawful alien's ability to contest the circumstances of being stopped by law enforcement, as the federal notification procedure is not triggered until after conviction and sentence.

INCENTIVE EFFECTS

Opponents fear that SB 1070 will cause Arizona law enforcement agencies to "round up" unlawful aliens for transfer to federal custody.  Objections to such "round ups" may be pragmatic (e.g., federal authorities would be overwhelmed and unable to manage the numbers of unlawful aliens transferred to federal custody) or principled (e.g., federal law should be changed so as to exempt from deportation unlawful aliens who do not commit certain crimes).  Assuming vigorous enforcement, the pragmatic argument is attenuated if unlawful aliens minimize lawful contact with Arizona law enforcement officers (e.g., by avoiding traffic violations) or emigrate to other jurisdictions. Similarly, if large-scale emigration of unlawful aliens from Arizona to other states imposes significant social costs on them, it is conceivable that these states would develop a stronger interest in the federal enforcement of federal immigration law (e.g., to mimic Arizona) or in the revision of that law (e.g. to decriminalize unlawful immigration). In the section below discussing the substantive provisions of SB 1070, note that the definition of each new state crime is predicated on existing federal immigration law. If federal law is changed, Arizona law changes with it.

SB 1070 has predictable, asymmetric incentive effects for law enforcement officers, some of which are counterintuitive.

Officers who desire to assist federal authorities in the enforcement of federal immigration laws now have the tools to do so legally. AS noted above, they can do so without racial profiling, provided that they use neutral means for triggering "reasonable suspicion."

On the other hand, law enforcement officers who desire not to assist federal authorities in the enforcement of federal immigration laws can legally do so only by enforcing traffic laws in a discriminatory fashion. To see why, note that if they make lawful contact, such as by traffic stop, they now have a duty to determine legal presence. This can be finessed two ways. First, they can violate the law by failing to make reasonable efforts to determine legal presence. Second, they can practice reverse racial profiling -- for example, by choosing not to enforce traffic laws against persons they think may be unlawful aliens.

Because of these asymmetric incentives, the number of traffic stops resulting in the detection of an unlawful alien can be expected to be distributed unequally across law enforcement officers and perhaps across jurisdictions.  To be concrete, a significant difference can be expected between Phoenix (where the mayor and police chief oppose the law) and Maricopa County (where the county sheriff strongly supports the law). Assuming that a statistically significant difference in enforcement arises, with Maricopa County greatly exceeding Phoenix, as expected, it cannot be determined a priori whether officers in Maricopa County are enforcing SB 1070 with more aggressively than intended or officers in Phoenix are choosing not to enforce it.

Unlawful aliens also can be expected to respond differently to the extent that jurisdictions within Arizona differ in their compliance with SB 1070. For example, it is expected that compliance will be high in Maricopa County, and this should rationally lead unlawful aliens to minimize their exposure to circumstances there in which lawful contact with law enforcement may occur. On the other hand, to the extent that Phoenix police officers minimally comply, in accordance with the wishes of the mayor and police chief, unlawful aliens will be less inclined to take care not to be detected while inside the city limits. 

On a state level, some unlawful aliens can be expected to emigrate to other states. To the extent that Arizona benefits from lower social burdens, these benefits will be offset, at least in part, by increased social burdens elsewhere. States experiencing increased social burdens from unlawful aliens can, if they want, reduce these burdens by mimicking Arizona. 

Normally, federal law and regulation does not provide semi-controlled experiments across state lines because federal law is intended to avoid interstate differences. SB 1070 is an exception. It will provide useful evidence concerning what it looks like when a state assists to the maximum extent it can in the federal enforcement of federal immigration law. Also, it will reveal the extent to which federal authorities are capable of enforcing federal immigration law.

---

Notes:

"Racial profiling" is defined, in the context of disbursement of federal transportation grants (23 USC 403 notes), as


but subject to a crucial limitation:

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