News Apr 24, 2010 at 9:24 am

Comments

1
Wouldn't it be fun if swarms of white people converged on cops, offering a glimpse of their birth certificates, passports and social security cards? All day long? And into the night? I'd really like to see that.
2
I've never been to Arizona before but now it's on my list of flyover states.
3
There's no way this can be enforced without discrimination. Cops would literally have to stop everyone on the street, which they don't have time for if they actually want to do their real jobs. So without time to check everyone, they'll only use this authority when they feel like it, based on whatever subjective criteria they want. Each cop's individual bias will determine who they stop and why.
4
Everyone who has researched articles by actual journalists on this story, raise your hands. Thank you. Everyone else, go make sure this isn't the lefty equivalent of the death panel accusations. That is all.
5
Where do you think everyone's getting their information, #4?
6
Hell! The cops aren't even going to try to enforce this. It's jus' like the cell phone laws.

This is just an attempt to appease da teabaggers.
7
Dingo @5, Beats me. I looked it up on the CNN site, and saw that apparently in Arizona the federal government was failing to uphold its immigration policy and some crimes, including a murder, had come about because of this. From that article, it appeared that the citizens of Arizona, white or otherwise, who are experiencing this as a real life problem instead of an esoteric discussion of ideology, found reasonable grounds to allow for searches of people and their effects. The bill of rights said that people are protected against "unreasonable" searches, but the people of Arizona, looking to wed real life solutions with constitutional law, have laid out reasonable, if not perfect, reasons to search people and their effects.
The fact that all of the responses to this issue have consisted of academic ruminations on the nature of the constitution without mentioning any details of the actual situation have led me to believe that the "everyone" you speak of are indeed getting their data from some other source than actual journal articles.
8
The majority of rapes are committed by men, therefore being male should be illegal.
9
7: I'm not aware of any of these "academic ruminations" you speak of, but Rachel Maddow just did a piece on this legislation, which you can watch online and which may help to clarify some of the issues for you.
10
@8: And the police can take you in for questioning if they have reasonable suspicion that you might be male.
"Ma'am, you have rather large hands and somewhat of an Adam's Apple. I'd like you to come with us, please."
11
You know, I normally don't waste any time on the propaganda networks in the USA, and whenever anyone refers to the "American media" I correct them: There hasn't been any media in this country for many, many years, just a bunch of propaganda networks.

The other day I was sick with the flu, so I turned on several different radio stations (I normally only listen to KEXP, especially on the weekend mornings, when possible, as that is the only progressive radio around -- and even then one finds planted stories).

First, I stumbled upon some Ameritard named Rush Bimbo, who said they had to offshore all the American jobs 'cause they couldn't find any American workers.

Next I rolled the dial to some formerly Air(head) America station, where this very loud southern male claimed that "we" needed illegals to perform all that work that American workers refused to do.

Next I came upon a New Age radio station where some cracker proclaimed that "..offshoring all those service jobs to India was a wake-up call. We just can't do customer service in America."

(I guess those Punjabis, when they aren't busy dismembering their enemies, are great at customer service??? And why do brainless twits keep using that godforsaken term, "wake-up call"????)

Gee, I guess there just aren't any workers anywhere in America. No wonder they offshored as many jobs as possible, and brought in all those foreign scab workers under all those visa programs (H1-B, H1-C, H2-B, L-1, O-1, P-1, P-2, P-3 and all the rest of them I've forgotten), or all those undocumented workers they've frequently replaced American workers with, and those official refugee programs they've expanded, and that illegal human trafficking of slave workers the corporations have readily supported.

I can't figure out how Arizona will survive??? Then again, Arizona is traditionally a neocon state --- unless John McCain has radically changed?

Nope, this is simply the beginning of the predicted balkanization of America. This country has far more troubles on its border with Mexico than in Afghanistan and Iraq, but the power elites make money there.

And that clown, Richard Clarke, is going around warning about cyber war with China, when he was the national security director under the Clinton Administration, and the Bush Administration, the two administrations which transferred the most sensitive and advanced military technology to China?

Huh, what gives??? And Clarkey claims the corporations are quite wary of that upcoming cyber war with China, yet those same corporate jackholes shipped the jobs, and relocated the research & development facilities to that country?????

Huh, what gives??? And the US government, and state governments shipped American civil service jobs to China (and elsewhere)???

No wonder so many are confused and bewildered......
12
Arizona? Isn't that the state that hack was from who claimed to be a scientist which the FBI (the feebs) used to support their fiction as to Dr. Ivens being their culprit in those Anthrax attacks right after 9/11/01??

For a non-fictional update on that story, please see below:

http://www.fredericknewspost.com/section…

Thanks for at least one newspaper in America actually running the news!
13
Is Maddow a dyke? Because I think I love her.

Also, this just seems like an excuse to question "people (gangsters) wearing jordans" and "people (punks) wearing docs" without specificially saying "back men" and "white kids with mohawks". Cops already do this, they just don't talk about it quite as openly as these ballsy/stupid Arizonians.

I don't know how the laws work in the US, but I know here we're allowed to say no to a cop who wants to search without probable cause. I'm pretty sure your shoes don't count as probable cause.
14
"Governor of Arizona signs law requiring immigrants to carry residency documents at all times..."

...and presumably to wear yellow sombreros at all times as well. (American political discourse is usually so Nazi-analogy-happy. This time it's actually accurate, yet I haven't heard as much of it.)

Doesn't Terry v. Ohio require a "conduct"-based determination of whether a temporary detention is warranted? Possession (or lack) of a piece of paper does not constitute conduct.
15
As an American I'm appalled by the actions of Governor Brewer and the Republicans of Arizona.

As a Democrat I love it! It will bring about the turning of AZ into a Democratic state much faster.

I grew up in CA and Governor Pete Wilson's Prop 187 helped transform CA from a swing state into a solid Democratic state.

Within 5 years AZ will do the same.

Thanks Governor. Your party's days are numbered.
16
@7: Arizona has a fairly modest crime rate consisting of mainly property crimes and vehicle theft. It's interesting that you're failing to take anything more than the "someone was killed" meme in your consideration of the actual environment in Arizona.

Moreover, while the murder of a rancher is tragic, the more heinous crimes in Arizona have been perpetrated by citizens, like the Serial Shooter Dale Hausner and his accomplice, Sam Dieterman and the Baseline Killer Mark Goudeau.

Occam's razor absolutely applies in this case.

Arizona is having another Mecham Moment.
17
Arizona is the Alabama of the western United States.
18
Oh, great! Another of America's endless wars. Endless prisons and endless billions for another no win.
19
@7 No, what Arizona did was lay out a reactionary law that makes xenophobic white people feel comfortable w/o directly disrupting their status quo or the power of wealth. Legal vs illegal immigrants do not look any different just like terrorists look no different than non-terrorists, which is why profiling laws have always been fiercely fought against by people who ACTUALLY work towards eliminating the problem.

If Arizona wanted to stem the tide of illegal immigrants, they would put policies in place that would require businesses to document workers and strict punishments for those that hire illegals, esp day laborers. But they have no interest in doing that because they've created a situation where Arizona depends on cheap, oppressive labor.
20
@7

"From that article, it appeared that the citizens of Arizona, white or otherwise, who are experiencing this as a real life problem instead of an esoteric discussion of ideology, found reasonable grounds to allow for searches of people and their effects."

Right, because "The People" have a right to authorize unconstitutional searches if they feel like. If that were the case "The People" could have kept segregation legal too.

"Everyone else, go make sure this isn't the lefty equivalent of the death panel accusations."

Death panels never existed. That was a right wing lie. The constitutionality of this law is a real and credible challenge.
21
Also, missing in most reports of the Arizona disaster is the fact that this would not have happened if President Obama wasn't such a political amateur.

Why the fuck did he appoint Governor Napolitano Secretary of Homeland Security, when it meant giving the governorship of AZ to the Republicans? It also meant that Senator John McCain would not have a serious Democratic opponent this year.

What a fucking amateur!

Taken with missteps in CO, NY, IL and DE, there's a small chance that the Democrats could lose the Senate this year. It didn't have to be this way.

Oy Vey!

Sometimes I wish Hillary were president instead.
22
AZ is in economic freefall. Its economy was based on availability and labor of undocumented residents. They paid rent, made purchases and contributed to the tax base. When you attmpt to eliminate 10%-15% of your economy, you will have
profound problems. This is what has been proven in AZ. Call it demand destruction on a legislated scale, and it is now going to become much, much worse. The AZ state deficit is the largest in the country based on its GDP, It is going ot become much larger, and the AZ legislature doesn't know what to do to stop the expansion of the deficit.
All you find in Phoenix and other metro areas are empty tracks of multi-family rental properties that once housed documented and undocumented residents.
No company is going to invest in this kind of environment.

AZ killed its golden goose several years ago with its stupid policies. It is now feeding on its rotting carcass. Bon Appetit, AZ! You deserve what you reap.
23
This law is an open invitation to racial profiling. It almost requires it.

I'm white, and an immigrant. I was a kid when my family moved to the US. My parents thought they might move back some day. So I had a green card for nearly 20 years before I actually became a US citizen.

Because I'm white, and speak English with an American accent, everyone has always assumed I'm American by birth, and no one has ever questioned my nationality or citizenship, ever, in my entire life.

Most asians and hispanics I know, even if they are born in the US, are periodically (or often) assumed to be immigrants (legal or otherwise), solely based on their racial appearance.

This law is totally fucked. It is an open invitation to harass brown people.
24
@22 Have you seen this?

http://www.9500liberty.com/
25
At @24. No I haven't but based on the trailer representations, I bet it represents what has been occuring in AZ for the last three to four years. In the case of AZ, it is on a much bigger scale.

Thanks for bringing it to our attention.
26
Make sure to check out their youtube page as well. I guess they posted videos as they made them over the filming process.

http://www.youtube.com/user/9500Liberty
28
@21

So Hillary would have appointed someone different? Would have someone influenced the AZ legislature to not be so batshit crazy? Janet Napalitano would have run against McCain (and won?)

None of this is Obama's fault, but if you want to exist in an an alternate universe where Hillary is Wonder Woman some how accomplishing everything you want, I guess it makes sense.
29
@19 Arizona does have such a law. That's what finally gutted the economy completely there after the housing market went bust. The racists were so determined to go after ALL the brown people, that they didn't consider how many of them contributed to the local economy - including the taxes they paid from their paychecks. Near my old neighborhood, two long-time grocery stores went belly-up because so many of the new houses were unsold and the rentals unrented. Now the economy will only get worse, especially when they start making arrests and the lawsuits begin. Several acquaintances with legal status or who were born in the U.S. are all planning moves out of AZ - and taking all family members with them. At least one of them was already struggling with the mortgage, so now they've just been given the impetus to walk away. Another runs a local business that does pretty well in Peoria, but who can easily relocate to California or NM.
Immigration lawyers know what a mess this whole law is:
http://www.dailykos.com/story/2010/4/24/…
30
@28 IF Obama hadn't appointed Napolitano to Homeland Security Brewer would not be Governor and this measure would not have been signed into law.

Also, it is well known that Napolitano was planning on running against McCain this year. If that was occurring right now, McCain would feel compelled to act like a moderate as opposed to running to the right as he is now.

Obama is not to blame for this; I never said he was. I'm just pointing out what a dumb, politically amateurish mistake he made. Many people thought it was stupid at the time and now it has come back to haunt him.
31
@27 I'm so sorry. I'm hoping when my aging parents reach the point of needing me to help with their care I can get them the hell out of AZ. If not, then they're going to have to relocate to Tucson or Flagstaff with me, because I absolutely refuse to live in Phoenix again. It's been ruined by the white masses from elsewhere (usually California, Texas, and the midwest).

Also - here's another reason this law needs to go down in flames, and soon.
From the lovely fucking state of Utah (racists see, racists do):
Utah Latinos urged to stay out of Arizona
A law signed Friday makes illegal immigration a state crime in Arizona and requires police to check the status of people they believe are in the United States illegally. If they are here illegally, police then have the right to arrest them. Now a Utah representative is ready to sponsor similar legislation here next session.
http://www.ksl.com/
32
@30

You're right. If Obama hadn't forced Napalitano to take the Homeland Security position, she would have been around to veto the law. And of course, there are no Dems running against McCain now, so he doesn't have to temper his position like he would if Napolitano would have run, because somehow, her presence in the race would have appealed to the anti-immigration crowd.

And let's talk amateurish political maneuvering. Because a few spots back you said "As a Democrat I love it! It will bring about the turning of AZ into a Democratic state much faster."

This isn't one of those 11th dimensional chess arguments, but this doesn't strike me as a bad maneuver if the end result is the Latino community moving even further away from the Republicans.

Seems like a pretty damn good maneuver to me.
33
The obvious problem here is that there are 11 million undocumented immigrants in the United States. So about 4% of our population is people who aren't legally entitled to be here. If you think that's an actual problem that you want to fix, laws like this make sense. If you think it's not a problem, or you don't want to fix it, this law seems totally offensive. But if I went to the UK, overstayed my visa, and lived there illegally, it would never occur to me that my civil rights were in some way being violated if I got caught, detained, and sent back to the United States. I don't have a right to live in the United Kingdom. Or Germany, or Canada. Or Japan; what do you suppose Japan's immigration policies are? Do you think I might get racially profiled if I were an illegal immigrant in Japan? Uh. Yes. But when Mexicans come to the United States illegally, liberals get all bent out of shape when the American government arrests them and sends them back to Mexico. It just makes no sense to me. There is no country in the world where I would be allowed to do what most of my friends think Latinos should be allowed to do in the United States, and I have yet to hear a rationale for their perspective that isn't dripping with condescending white guilt.

But, you know, I'm an asshole. What do I know.
34
Here's what I don't get, and maybe one of the lawyers who frequently post here can help me with:

Back in the 1980s, there was a man who liked to walk around residential neighborhoods here in San Diego late at night. The police would spot him, stop him, and ask for his ID. (The fact that he was black and was walking around in predominantly-white neighborhoods might have had something to do with it.) He argued that simply walking around at 3:00am was not in and of itself criminal/suspcious behavior, and refused to show them his ID.

The case went all the way to SCOTUS, and the judgment was in his favor: The police cannot ask for your ID just because you're walking the streets, regardless of the time of day/night, etc.

So how is this new law in AZ any different than dthe actions of the SDPD that were deemed unconstituitonal?

35
Judah: I agree with you 100%. Thank you.

Jared: it isn't different, which is why it's probably unconstitutional.
36
At 33...

Well Judah, We have encouraged these people to come to the US thru practice and ignoring policy and law for the last several decades. We looked the other way when they were employed on our behalf or for us. Perhaps they are now married, have children who are US citizens or perhaps have a spouse who is a US citizen or legal resident. As you can see, the situation starts becoming exceptionally complicated.

What's your thoughts here Judah? Round em'up and deport 11 million people? You want to start even begin to imagine the social and economic outcome of such a policy? What about the families and the relatives? What are the economic costs in lost GDP, tax revenues and in prison holding, trial and deportation for 11 million souls? You want to separate and break up parents from their kids?

Perhapas you want to think this thru a little bit more.
37
@29 Good, they deserve it. I'm tired of people complaining about immigrants and not willing to pay the true price of their xenophobia. Now we need their food prices to go up 300%...
38
@36

Since you asked, my preferred solution to the problem as it stands would be to allow anyone who can demonstrate that they've lived in the United States for at least one year, as of a certain date and within a very low standard of proof, to either claim full citizenship or go home. Then I'd pass new laws saying that everyone who comes in illegally after that should be subject to a criminal penalty and deported; conspiracy charges would apply to anyone who knowingly aided an illegal immigrant; employers who hire undocumented workers would be susceptible to criminal penalties that include jail time; we would spend more money patrolling our borders; and coyotes who negligently cause the death of someone trying to cross the border illegally would be criminally liable for capital murder. That would be my solution to the illegal immigration problem in practice. Because I like Spanish, I would be happy for my daughter to marry a Latino American, and I fucking love Mexican food and I would gladly keep every single undocumented immigrant (Mexican or not) that we currently have in the country. But allowing the tide of illegal immigration to continue unabated erodes the efficacy of labor laws, family law, unions, tax law, and social services, and that is just too high a cost to pay for a cheap tomato, in my opinion.

As to the rest of your post -- with all its transparent rhetorical strategies about "round 'em up" and "11 million souls" -- let's try a little thought experiment, shall we? Imagine that a corporate executive supports a huge extended family and runs an important industry, but that he does it all by breaking the law. Suppose he gets caught. In his case our basic assumption would be that he knew going in that he was putting his family, his employees, and everyone else at risk when he set up that off-shore account. And we would tend, I think, to hold him responsible not only for his own mistakes, but for all the human misery he's going to cause by having fucked all those other people over -- not just with his dishonesty, but with his shitting planning.

If, on the other hand, a man immigrates into the United States illegally, gets a job here, gets married, has some kids, brings in some more family members, and so on -- and does it all knowing that he could be deported at any time -- well. In his case, we blame the hateful racists. Because why? Because he's poor, and brown. And, frankly, I haven't seen any evidence to suggest that most liberals who believe that aren't just paternalistic twats. Because, again, if I did something like that in the United Kingdom, or Canada, or Germany, it would never occur to me that I had anyone but myself to blame when it all fell apart.

Perhaps you want to consider this question more critically, instead of just spouting the same crap I'd hear in any first year seminar at The Evergreen State College.
39

All they need is a database with all the registered birth certificates of the 300 American citizens.

Ask for a drivers license or id. If they're not in the database, good bye.

What's the big deal?
40
#38 is a groovy comment
41

Think of illegal aliens as Drunk Drivers.

At any time, police can set up check points to give breathalyzer tests.

There's no discrimination, because they test everyone.

Same with citizenship.

They can just say, anyone passing by, please show us that you're in the database.

42
If AZ effectively rids itself of illegal aliens, it's going to hurt them economically.

Those awful golf resorts will be screwed for landscaping, cleaning, and kitchen workers. And who's going to clean all those retirement homes and condos? Not good for builder/contractors either, and they're already hurting. The agriculture industry is screwed. Enforcement costs are a going to be a bitch.

43
@33, you repeatedly conflate "Latinos" with "non-citizens". Arizona used to be a part of Mexico; so did Texas, and Utah, and California (we stole them). Many of the residents of the Southwest know that the border crossed them, not the other way around. These people, by virtue of being brown, are now permanent suspects -- even if they've been in the US for five generations.

Also, migrant labor has been a part of American life since before America existed. One of the ironies of restrictive border policies is that workers who formerly crossed back and forth over the border every year now have every incentive in the world to stay here permanently instead.

Your comments about what would be allowed in Japan or the UK apply equally to EVERYONE in this country, who came here under circumstances that wouldn't be tolerated elsewhere. America is a nation of immigrants, full stop. It's what makes us who we are.
44
@41

Sobriety checkpoints were given an exception to the 4th Amendment because the Supreme Court ruled that it was in the best interests of the state to prevent drunk driving, but, that applies to sobriety checkpoints, not just any situation where the police might stop someone on the street.
45
COOOL!
OMG I can't wait till the Arizona KGB ask me for my Paprusk!!!! I hope they call me comrade when I check out.

HAHAA, and it's the NEOCONS who are afraid of OBAMA turning the country into a socialist state!?!?? Har har. Irony at it's best.

All hail the glorious revolution!
46
@33: The issue is not that all "lib'ruls" think Central and South Americans should be allowed to flood into the US illegally. I'm a liberal -- an ESL teacher, even -- and I think illegal immigration is not good for our country. Illegal immigration, when it comes from essentially one cultural group, upsets the balance of immigration and too rapidly changes our culture in affected areas to either one reflecting the culture of the immigrants or to one reflecting the outraged natives who want to drive them all out with shotguns. I would like for lawmakers to craft an immigration policy that is actually enforceable. However, this law does not work. The issue is that, as #34 points out, the SCOTUS has already ruled that such profiling HARASSES LEGAL CITIZENS, and there are many perfectly legal and even native Latinos living in AZ.
I completely agree that we need a way to enforce our immigration policy, but this is not it.
47
@33

you repeatedly conflate "Latinos" with "non-citizens".

Yeah, you say that as if it's some kind of racist Freudian slip on my part. It's not. When the subject of undocumented immigrants is discussed in the United States, it's usually a gloss for illegal immigration from Mexico, and one of the issues that's implied in that discussion is that most measures aimed at identifying undocumented immigrants end up targeting American citizens of Mexican Indian descent by implication. And, honestly, the population you mention is actually less relevant to the discussion than the other big group of Latino American citizens -- Latinos who came here recently and got their citizenship, but who have deep ties to the undocumented immigrant population. I'm not unaware of these distinctions, but this is a comment thread, not the Journal of International Studies, so I thought, at least for my first comment, I wouldn't add a three page fucking addendum specifying exactly which populations I was talking about. Otherwise, thank you for being one of those people who, when someone says something about the Israeli-Arab conflict just has to say, "Actually, there's a substantial population of Israelis who are of Palestinian descent, so the situation is actually more complicated than you think it is." I'm sure your friends all think you're very intelligent.

America is a nation of immigrants, full stop. It's what makes us who we are.

Thank you for bringing this up, because it's something I hear all the time and it's something I wanted to address. Most nations, even the ones that now seem relatively homogeneous, are nations of immigrants. The United Kingdom, for example, is made up of Angles, Saxons, Jutes, Norman French (who are actually just Saxons from France), Celts, Picts, Africans, Caribbean Islanders, Pakistanis, Indians, various modern immigrants from the Continent, and a mish-mash of others. At least four of those groups essentially invaded, and continue to exist as fairly distinct ethnic groups. Yet, weirdly, none of those groups infer, and I don't think it would occur to most Americans to imply, that they don't have a right to secure their borders against illegal immigration.

The notion that, because some European Americans are descended from invaders (and keeping in mind that most of us are actually descended from people who immigrated here perfectly legally well after the invasion was over), the United States has no right to secure its borders or control immigration is an argument of moral equivalency that has no precedent in the policies of other countries that were formed by invasion.

And, finally, as long as we're pointing out the obvious -- did you happen to notice that I'm not arguing against immigration, per se, but illegal immigration? I would, as a matter of general principle, be fine allowing large numbers of people to immigrate here legally. My main issue with illegal immigration is that it undermines lots of other policies. I don't have a problem with the people, their culture, or any of the rest of it. The problem I have is that allowing illegal immigration is a policy choice designed to hurt the American worker -- not by bringing in lots of brown people who are going to "steal our jobs" but by bringing in lots of immigrants who are legally vulnerable and can therefore be induced to work for less than the minimum wage, not report safety violations, and so on.
48
The issue is not that all "lib'ruls" think Central and South Americans should be allowed to flood into the US illegally.

No, that's not yourissue. I can guarantee you it is the issue with a lot of people, including a lot of people who read this blog. It gets back to that thing Fnarf said, about the U.S. being "a nation of immigrants." Which, as near as I've ever been able to discern, is liberal code for something along the lines of, "I feel guilty about what happened to the Native Americans, so the United States shouldn't have any border security." That may not be what Fnarf was getting at, but it's what most people seem to mean when they use that phrase.
49
Judah, I think there can be a legitimate argument for stricter immigration laws. But this law is totally bogus.

The problem with this particular law is that there is no way to achieve it without racial profiling. It is a blatantly racist policy that would lead to widespread harassment of perfectly legal citizens who happen to look hispanic.

Yes, 11 million illegal immigrants in this country is a problem. But this law is not a solution.
50
If the law is primarily applied on the streets to people who "look illegal," then yeah, you can't do that without racial profiling. But what about situational applications? Why not go down to the local Wal-Mart and ask the day laborers standing outside the door looking for work to show their papers? Casual labor isn't a racial trait, but it's one heavily correlated with illegality.
51
@48

Your debate tactics are bullying. "I'm sure your friends all think you're very intelligent." What a bunch of smug bullshit. Seriously, stop it.

The thing is, what you're arguing against is a strawman. No one thinks illegal immigration is a great thing, no one thinks that the United States doesn't have a right to lay down sensible immigration policy to 'secure its borders'. What they are arguing is that Arizona's law is clearly not a productive (or constitutional) approach, that enforcement will be racist, and they should be arguing that it's outrageous for Arizona to presume to make U.S. border policy. These are things you've avoided addressing in favor of making a chest-pounding defense of things everybody pretty much agrees about.

That said, I think your proposal pretty much nails the solution: easy one-time amnesty, new (sensible, relatively open) immigration laws, followed by strict enforcement to deter people from trying to step around that policy.
52
This particular law is definitely anti-brown-people. I have a pal who's an Irish immigrant: pink-cheeked & bouncy. Has a green card but said he never gets the hassle @ Customs/TSA or other points of entry to the country that he sees Hispanics, Indians, & Arabic people get, at the airports/border entry points.

There needs to be some kinda solution to illegal immigration, which overburdens various of the nation's fiscal systems, but that allows for legal emigration eventually. Enough people from other countries work here that ignoring their contributions to our nation is short-sighted.

(Fun aside for me: the video used, "Shoes", by Liam Sullivan as Kelly, is awesome & the source of my icon! Lookie - audio = NSFW) - http://www.youtube.com/watch?v=wCF3ywukQ… )
53
Your debate tactics are bullying. "I'm sure your friends all think you're very intelligent." What a bunch of smug bullshit. Seriously, stop it.

And your debate tactics are condescending, superior and, dare I say, smug. I guess we'd both better stop commenting on the internet. Short of that, I guess my response to, "Seriously, stop it," would be that you should maybe take more notice of the beam in thine own fucking eye.

These are things you've avoided addressing in favor of making a chest-pounding defense of things everybody pretty much agrees about.

Fine. The Arizona law is almost certainly preempted both by the Article I of the Constitution and by federal laws based on Article I; however the reasonable suspicion standard laid out in the law is pretty much in line with Supreme Court rulings on what are called "Terry stops", particularly as articulated in United States v. Sharpe (1985) and Illinois v. Wardlow (2000); the standard for how much provocation a cop needs to stop someone and ask for identification, under the Fourth Amendment, is extraordinarily low. So the law is probably preempted, but is otherwise -- once the notion that being an illegal immigrant constitutes a criminal offense, and that officers therefore have a right to investigate possible violations of that law, is established -- once that's established, the law is probably constitutional.

That said, as I believe I indicated in my very first post, few laws are perfect, and saying, "The government should certainly be able to address the problem of illegal immigration as long as they do it in such a way as to guarantee that nobody is racially profiled or has their constitutional rights violated," is tantamount to saying that the government shouldn't be able to address illegal immigration at all. As far as that goes, your assertions that sentiments against immigration law and in favor of unchecked illegal immigration are a "straw man" are just bullshit. Look at Fairhaven @36; that post basically says that actually doing something about illegal immigration would constitute a human rights violation. So the underlying question here is, are we going to do anything about it. Arizona is probably overstepping their legal authority, but if they're overstepping their legal authority in pursuit of a goal we all agree should be achieved, then the questions becomes not whether Arizona's law should be thrown out, but what should be done to make it constitutional. I don't see anyone in this thread asking that question.

54
Judah, if you're going to start citing legal precedent, you should try to get at least some of it right.

Terry stops involve the selective lowering, from "probably cause" to an ARTICULABLE "reasonable suspicion," of the threshold required to BRIEFLY detain a person the officer believes has just committed, is in the process of committing, or is about to commit a crime. Even if failure to carry the proper paperwork is dubiously criminalized by the new Arizona law, this is not the sort of "crime" that officers will be able to articulate a Terry-qualifying suspicion about.

Illinois v. Wardlow was about whether a reasonable suspicion is created when someone spontaneously flees at the sight of police (it does). United States v. Sharpe was about how, in limited circumstances, the definition of a "brief" stop may need to be elastic (the case has no bearing at all on the threshold required to justify the stop in the first place).

So current case-law absolutely does NOT permit random stop-and-I.D. checks because a person "looks illegal," unless that person spontaneously flees (hint: don't spontaneously flee). The Arizona law PLAINLY requires cops to run afoul of this.
55
I find it really sweet and endearing how folks implicitly believe that five out of nine justices on SCOTUS actually give a damn about civil liberties in general and the civil liberties of brown people in particular.

How you find time to do these posts when your days are filled with the busy round of waiting for unicorns and sprinkles and rainbows is really an impressive example of efficient time management.

/end legal accuracy and pintless dickery
56
Actually, it was pointless dickery, but, given that soon alcohol will probably be illegal again I guess that pintless will do.
57
@53

I think you need to reread #36. It says nothing like what you claim it does.

And I'm quoting you below because this statement speaks for itself:

...if they're overstepping their legal authority in pursuit of a goal we all agree should be achieved, then the questions becomes not whether Arizona's law should be thrown out, but what should be done to make it constitutional.
58
Judah, if you're going to start citing legal precedent, you should try to get at least some of it right.

d.p. you should at least read the comment you're responding to and comprehend what's being referenced. I didn't refer to what the cases held, or what they're used for in criminal procedure -- I referred to what they articulate. I mentioned Sharpe because it's a good example of how profiling can be used in law enforcement, and what a comparatively low standard the the police have to meet for their suspicions to pass muster (highway known for interstate drug trade, trailer riding low on its suspension). I mentioned Wardlow because it's a good example of how doing something that's technically perfectly legal (running when you see cops) can be sufficient to trigger a search; this is relevant to the legislator's crack about suspicious shoes. Whatever Wardlow held, the Court specified that Wardlow was busted in a high crime area during a raid on an outdoor drug market. The implication was that they were going into a black neighborhood on a massive drug raid and that, in that context, anyone who ran away could be stopped. Can you imagine how that standard -- not necessarily the standard held, but the standard articulated -- might be applicable to the application of a law aimed at arresting undocumented workers?

And I know what a Terry stop is. Again, I referenced it as a phenomenon, not a criminal procedure. And when you look at how the phrase "Terry stop" is applied in other SCOTUS cases, they often use the term imprecisely to describe any low-cause seizure and/or search.

In conclusion, cases are socially relevant in ways that exceed their holdings, and their social relevance can be more informative than the arc of their holdings for purposes of informing what future decisions are likely to hold, and what may be "legal" for purposes of new laws.
59
@58: "this is relevant to the legislator's crack about suspicious shoes"
You miss the larger point, however. That would be that shoes (unless they have a compartment in the heel labeled "CRACK SMUGGLING HOLE") cannot really be suspicious. I mean, seriously?
I understand that you are not attempting to use this to support the law (only to explain why some might do so), but you seem incapable of comprehending that there really isn't any overlap.
60
Damn. And some people think Arkansas is bass ackwards.
Funny vid, btw. I like Rachel Maddow.
61
@59

Look. When you're talking about what the law is or isn't, the only thing you can be sure of is that your best odds for being able to anticipate the outcome of a given case is if there is an earlier case, with a ruling by a court that has the same composition, that contains identical factual and legal issues. Otherwise, in my observation, the best way to anticipate how a court will decide a particular issue is to look at the biases of the court. The current Supreme Court leans way way the fuck over to the right. They have allowed searches and seizures based on laws, and law enforcement techniques, that would be patently prohibited by any common-sense reading of both the Constitution itself, and many previous cases. The Terry case, from which the term "Terry stop" is derived, for example, contains several pages of what one would think, on first examination, would be ironclad rules against the misuse of the searches authorized by that case. And yet, just four years after Terry was decided, Justice Marshall had this to say about the next case that came to SCOTUS on the question of Terry stops:

Mr. Justice Douglas was the sole dissenter in Terry. He warned of the "powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees. . . .". While I took the position then that we were not watering down rights, but were hesitantly and cautiously striking a necessary balance between the rights of American citizens to be free from government intrusion into their privacy and their government's urgent need for a narrow exception to the warrant requirement of the Fourth Amendment, today's decision demonstrates just how prescient Mr. Justice Douglas was.

So my point here has been that the current state of Fourth Amendment protections in the United States would be perfectly amenable to the police stopping someone based on pretty much any pretense, and asking them for identification to prove their legal status. Whether the courts would allow such stops based on an honest rendition of the facts is not the point I'm chasing -- I'm talking about whether the courts would allow it based on certain agreed-upon lies that the police already employ on a regular basis. Here again, consider Whren v. United States (1996). d.p. would say that Whren is about whether the stop was legal, and (s)he'd be correct as far as the holding goes. But the fact pattern of Whren specifies that some plainclothes cops in an unmarked car pulled over an SUV full of young black men, that they identified themselves as police officers when they got out of their car, and that when the cops approached the SUV they couldn't help noticing that the defendant had two large plastic bags of crack in his hands. Now, keeping in mind that SCOTUS upheld that conviction -- what do you suppose are the odds that the defendant actually had the drugs in his hands? I'd calculate them to be approximately zero. I'd say that the cops stopped the SUV because it was full of black guys, then searched it illegally, and lied about it afterward, and got away with it in the Supreme Court. And if that's all it takes to make a search legal, I'd expect the stops an searches that would be necessary to enforce the Arizona law to hold up just fine.

The fact that you don't see any overlap there might be charitably described as "cute."
62
@61

Of course, you're in favor of such abuses of power because:

...if they're overstepping their legal authority in pursuit of a goal we all agree should be achieved, then the questions becomes not whether Arizona's law should be thrown out, but what should be done to make it constitutional.
63
@62

"What should be done to make it constitutional," means, "how should the Arizona law be modified to bring it in line with existing constitutional requirements."

Did you have another point?
64
It seems to me that there's some confusion, here. Judah is detailing (a) what the law is in specific circumstances, (b) how it is illustrative in other circumstances, including the social, and (c) what it is likely to be, given the current anti-BOR makeup of the applicable bench(es). A lot of folks here are taking that to mean that he is arguing, for the most part, as to what the law should be or what he wants it to be. About the only point where he does that is where he noted way upthread (@33) when he is talking about the reasonableness of border and residency restrictions.

I've got no brief one way or the other, but it seems to me that you're arguing past each other.

The thing that has always stood out for me, being on the outside of America looking in, is that there is a fundamentally paradoxical dynamic regarding illegal immigration. There are laws and social forces regarding maintenance of the borders, of residency requirements and the like. On the other hand are very-low-wage jobs which can only be filled by the tacit encouragement of illegal immigration. The problem seems to stem less from the fact that there are people from third world countries who will do necessary jobs than the fact that access to that poverty-level labour pool is mandated by the refusal to pay anywhere close to living wage for work that need be done. It's not so much that "Americans won't do it" but a refusal to pay an American wage for an American job. It's not as if your crops rotted on the vine or your rooms went uncleaned for two hundred years or so until large-scale illegal immigration came along. It was again Judah, I believe, who noted that any response to controlling illegal immigration must be aimed in large measure at the people who exploit them once they're in America.
65
@ 61

The current Supreme Court leans way way the fuck over to the right. They have allowed searches and seizures based on laws, and law enforcement techniques, that would be patently prohibited by any common-sense reading of both the Constitution itself, and many previous cases.


So are you saying that, even if this Arizona law would be upheld, it does run afoul of any sensible understanding of the Fourth Amendment and prior caselaw? Because if so, then I fail to see what the point of disagreement is among you and the other commentors is. (I'm not trying to be snide - I'm honestly just a bit lost. I think it's fair to say that blog comment boards tend not to be the best place to engage in political/legal discourse, even if everyone knows what they're talking about.)

(And yet, here I am, doing just that. Ahem. Anyway.)

As for Illinois v. Wardlow, you're right that technically legal activity can trigger a reasonable suspicion, but that's a far cry from saying that all technically legal activity can trigger a reasonable suspicion. Spontaneously fleeing from a cop? That's pretty suspicious. The crack about shoes - which I agree, was probably pretty tongue-in-cheek - would be a very serious expansion of the Wardlow standard, one that I'm not willing to say the Court would necessarily be comfortable implementing. And I doubt that even the Roberts Court would be willing to say that ethnicity, skin color, or speaking Spanish are enough to trigger that reasonable suspicion. If, on the other hand, a Latino person who lives in a neighborhood populated by a high number of illegal immigrants sees a cop and scrams, that would almost certainly meet the Wardlow standard. Moreover, reasonable suspicion has to rely on articulable facts - manner of dress and speech is (one would hope) not going to meet that bar.

Hiibel v. Sixth Judicial District Court of Nevada, just to cite another example, might suggest that SCOTUS would uphold this law; on the other hand, requiring people to carry identification papers could (and, I'd argue, should) be seen as an overbroad extension of state police power.

As for your general points on illegal immigration, I find this debate just a little hilarious. Not because I think you're wrong on policy proposals - quite the opposite. Rather, because what you're proposing seems to be what just about everyone on here is advocating. Amnesty for most of the people already here (because, as Dubya of all people put it, deporting 11 million people is neither a feasible nor desirable outcome), reform of immigration laws to allow a reasonable amount of immigration (frankly, mostly from south of the border), and enhance border security in order to really enforce these new, sane immigration laws (hopefully without any giant fences, seeing as it seems to have had limited effectiveness while being needlessly wasteful). Which gets back to my first point about blog comment boards being lousy debate forums - it's hard to respond and clarify your points when you have to type up your posts all at once. And people (myself included) don't tend to put the maximum amount of care and thought into a relatively hurried blog comment.

I'm sure even the very best among us have had moments like this.
66
@63

I see what you meant now, but if you agree that the law is an unconstitutional abuse of power which should be abandoned as written, I'm not sure what you are being so antagonistic for. Why all the stretched legal interpretations?

I guess you think liberals aren't prepared to address the problems in our immigration policy? The president has already indicated that he intends to do so--I haven't heard any complaints about that from anyone here.

It seems like, when pressed, you agree with what everyone else here thinks. Maybe you should drop the convoluted rants and just say what you want to say directly.
67
@66

To paraphrase: "I misunderstood you. So you're a bad writer."

It seems like, when pressed, you agree with what everyone else here thinks.


"When pressed"? I articulated the same opinion @63 that I articulated @33. Most of the intervening time has been spent arguing with people like you. But there is one core point where I probably don't agree with most people here -- unless and until something happens at the federal level that actually addresses the illegal immigration situation to the satisfaction of at least some significant faction in the debate, I think state legislation of some kind may be a reasonable response -- both to illegal immigration and to the federal refusal to act on the issue. A state law response of any sort is going to make life much harder for the undocumented immigrants who are already here but, as I said above, I'm basically of the opinion that someone who lives in another country illegally has made a choice to accept the consequences if and when they should arrive.
68
@ 67 - I don't think people are saying that no state law addressing illegal immigration can be legitimate. In fact, even if federal enforcement were at the maximum level, the fact that federal immigration enforcement uses state officials means that the federal government can't completely preempt state laws on immigration without running afoul of the anti-commandeering principle. But this particular law is a complete disaster. Not only that, but you agree that it makes little to no sense to deport illegals who have been here more than a year or so; by your own logic, stepping up enforcement against illegal immigrants who have been here for several years, while it might be legally sound, nonetheless makes little policy sense.

I'm basically of the opinion that someone who lives in another country illegally has made a choice to accept the consequences if and when they should arrive.

What if - and I ask this sincerely - the stringency of the laws and the enforcement mechanisms against illegals get much harsher after they arrive? Is that a mitigating circumstance? I'd imagine turning around and leaving once you've been here for a while is much more difficult than being turned away at the border. (I'm honestly not leading you one way or another, but I'm genuinely asking you for your take on this situation.)

It's this sort of situation that makes immigration reform at the federal level such an important priority. Like you've pretty much suggested, implementing a Reagan-esque amnesty program, reforming our immigration laws so as to allow for a more reasonable/realistic amount of immigration, then policing our borders to actually enforce those new immigration laws seems to be the fairly obvious solution.

Also, your comment @ 33 and subsequent comments do seem to take pretty different approaches. If I may:

If you think [illegal immigration is] an actual problem that you want to fix, laws like this make sense. If you think it's not a problem, or you don't want to fix it, this law seems totally offensive.

Which basically says that this law is legitimate, since no one on here is saying that illegal immigration is a good thing. You subsequently clarified your points, but arguing that people could glean from @ 33 what you proceeded to say in later comments is completely unfair.

No one is expecting you to write a 200-page policy proposal on immigration law and post it on Slog. But you can't really expect other Sloggers to understand your entire stance from one relatively narrow point.
69
@67 - you keep making this point:
Im basically of the opinion that someone who lives in another country illegally has made a choice to accept the consequences if and when they should arrive.
Well, duh - so is everyone.

The reason people object to this law is that it puts a burden on LEGAL Hispanics for being Hispanic. Imagine how pissed you'd be if you were hauled off to jail for doing nothing illegal or even suspicious, just to be set free hours later when your wife shows up with your ID card.

The lack of success in dealing with illegal immigration is frustrating. But this is similar to the $50 fines for panhandling: when it comes to doing nothing or doing something that won't actually fix the problem, I'll vote for doing nothing every time. This law stands zero chance, even with the most conservative bench imaginable. It's just a waste of everyone's time.
70
What if - and I ask this sincerely - the stringency of the laws and the enforcement mechanisms against illegals get much harsher after they arrive?

Generally speaking, I would tend to think that this is factored into the choice one makes when one chooses to live in another country illegally. There are some places where there's a lot of drift in the law, and anyone who does something connected with that law knows or should know that their status may change -- gun dealers, strippers, and so on. Or, to put it in a less weird light; when people get married, the legal meaning of that contract changes over time in response to various forces, and any rational person should know that those changes are not only likely but, to some extent, inevitable. You join the National Guard during peace time, you may end up deployed in the Army when the next president starts a war. There are lots of situations like that, and the stakes of them are pretty high. Undocumented immigrants are just one of the groups that lives under constant threat of getting fucked by history.

Which basically says that this law is legitimate, since no one on here is saying that illegal immigration is a good thing...what you proceeded to say in later comments is completely unfair.

Having had this debate on Slog in other contexts, I actually don't believe that no one here thinks illegal immigration is a good thing. Or, more precisely, I think a lot of people here don't believe that illegal immigration is an actual problem that needs to be fixed. Maybe in the abstract, but not when it comes to actually doing something about it. And this is where some jerk will accuse me of propping up a straw man, but my observation is that most people on the left who aren't in favor of open borders basically don't give a shit about illegal immigration. So they're happy to criticize any measure aimed at dealing with it (because most of those measure are flawed in one way or another), but they don't have a better plan for addressing it, they don't consider it an issue worth changing their vote over, and most of them would never think to send a letter to congress over it. And "of course we want to deal with it, but this law..."

And this is the distinction I was drawing in @33 -- if you think illegal immigration is a problem that actually has to be dealt with, you're willing to balance constitutional considerations against the outcome of addressing the problem. I don't actually think the balance in the Arizona law is remotely acceptable. But I also think that any law that addresses the illegal immigration problem with the intention of deporting illegal immigrants who are here now is going to open a window for some racial profiling. The Arizona law opens the window too wide. But, barring an amnesty program, someone's probably going to have to open that window at least a crack.

Should we do that? I'd prefer to avoid it with the amnesty program I mentioned, for a wide variety of reasons. But that's not the only alternative I'm willing to consider; I don't think it should be, "amnesty or we just sit on our thumbs for another 20 years".

Fourth Amendment rights are balanced against policy goals all the time. They did it in Terry, they do it in lots of other circumstances. Sooner or later, someone's probably going to have to bite the bullet and pass a law on this issue. Hopefully it's a good, compassionate law with positive incentives to produce good outcomes for lots of people. But something less than that will at least get the ball rolling.

This law stands zero chance, even with the most conservative bench imaginable. It's just a waste of everyone's time.

Evidently the legislature and the governor of Arizona didn't agree with the second part, whatever their thinking on the first part might be.
71
@ 70

Fourth Amendment rights are balanced against policy goals all the time. They did it in Terry, they do it in lots of other circumstances.... if you think illegal immigration is a problem that actually has to be dealt with, you're willing to balance constitutional considerations against the outcome of addressing the problem. I don't actually think the balance in the Arizona law is remotely acceptable.


Believe me, I'm fully aware that Constitutional rights are pretty much never absolute (and if I had a nickel for every time I had to explain that to someone, I'd have paid off my student loans by now). But courts also tend to be relatively deferential to constitutional concerns. So much so that, if a statute even raises a constitutional concern - even if it's not necessarily unconstitutional - the courts will look for ways to interpret the statute so as to disallow that constitutionally sketchy application.

And constitutional provisions do provide meaningful outer limits to state power. The Arizona law doesn't just fail a meaningful balancing test; it seems to actually go beyond what is constitutionally permissible, regardless of the policy goals it advances. Counterterrorism, for instance, is a pretty compelling policy agenda, but even the Rehnquist and Roberts Courts have recognized limits as to what can be done to advance those policies.

I'm not accusing you of saying the Arizona law is acceptable. You've said in the most explicit of terms that you don't think it's remotely reasonable. But you seem to be giving the law the Constitutional benefit-of-the-doubt in a way that runs afoul of even conservative interpretations of the Fourth Amendment.

Should we do that? I'd prefer to avoid it with the amnesty program I mentioned, for a wide variety of reasons. But that's not the only alternative I'm willing to consider; I don't think it should be, "amnesty or we just sit on our thumbs for another 20 years".


Again, I ask this sincerely - what other alternatives are you talking about? Granting temporary worker status with the possibility of applying for legal residency? Allowing current illegals to apply individually for legal residency (without the guarantee of an amnesty program) while turning a blind eye to the fact that they're already here? A mass deportation program (and I realize you're not advocating one), in addition to being a bad idea, would be needlessly wasteful

And this is where some jerk will accuse me of propping up a straw man, but my observation is that most people on the left who aren't in favor of open borders basically don't give a shit about illegal immigration. So they're happy to criticize any measure aimed at dealing with it (because most of those measure are flawed in one way or another), but they don't have a better plan for addressing it, they don't consider it an issue worth changing their vote over, and most of them would never think to send a letter to congress over it.


First, what I was referring to with the "unfair" comment was that it was unfair to expect people to glean everything you said in your later comments from your first post. Sorry if that wasn't clear.

Second, here's where my observations have to contrast with yours. The lefties aren't happy with a constant influx of illegal immigrants, if only because it's created a shadow economy of cheap workers that are not only being exploited themselves, but are devaluing labor in the US economy as a whole (at least in the southwest). Part of the problem is that most laws that focus on stepping up immigration enforcement I've seen gain any traction seem to focus more on the status of illegal immigrants that are already here than any viable way to enhance border security. I realize the concerns are far from wholly separate from one another, but there is a meaningful distinction to be made. It's also not unreasonable to weigh civil liberties concerns about immigration laws against the actual harm done by the presence of illegal aliens in the US. When you consider that much of the harm done by their presence could be more readily addressed with an amnesty program than a deportation effort, I don't find it difficult to see why people on the left (yours truly included) see immigration reform in the absence of some sort of amnesty/residency/guest workers program to be a needlessly harsh exercise in futility. On the other hand, I've come across far too many people on the Right - and, weirdly enough, a fair number on the Left - who really do think that the best possible solution would be a mass deportation program. But that's been my experience.

In any event, it sounds like most of us are mostly in agreement on most of the big issues, which is why it struck me as kind of hilarious how heated the debate has gotten. Based on these comments, what most everyone seems to think would be ideal situation is reform of our woefully outdated immigration guidelines, along with an amnesty program in conjunction with increased enforcement of those new immigration laws. And it seems like, with the sole exception of the nigh incomprehensible ramblings @7, no one wants to defend the Arizona law as it stands. So...where's the disagreement?
72
But you seem to be giving the law the Constitutional benefit-of-the-doubt in a way that runs afoul of even conservative interpretations of the Fourth Amendment.


Yeah, I don't know about that. I mentioned the cases I mentioned because they're sort of the most egregious examples I could think of right off the top of my head of the Court rubber stamping Fourth Amendment violations. But you can just as easily look at Ornelas v. United States. Which, again, d.p. would say that's a search case, and that would be true, but the officer who initiated the search did it all based on an initial observation that the suspects fit a "drug courier profile." And there again, the Court cited this protracted litany about how the cop had 20 years experience and how the type of car was known to have lots of hollow places for secret compartments and all this other stuff -- but it all started with a Milwaukee County Sheriff going after two Latinos based on a profile opinion. So I'm strongly inclined to think that, if Arizona cops used some discretion about how they apply the new law, a federal court might, in fact, allow it to stand. They'd have to do it right. They couldn't just pull people over for being brown. But if they could articulate any other pretext, I think it might fly, provided the federal courts were on board with the underlying policy goal. It's where I'd put my money, if I were betting. Not very much money, but that's where I'd put it.

Again, I ask this sincerely - what other alternatives are you talking about?


Most of the alternatives I'd prefer to see would involve gibbeting employers who hire undocumented workers. But if a state actually decided for some retarded reason that they wanted to deal with this by requiring valid proof of residency status in order to obtain a driver's license, own, or operate a motor vehicle, I might be willing to let that one slide. Or if they wanted to impose a similar requirement on anyone carrying out a transaction at a payday loan or check cashing place. Or to require a valid passport, green card, or visa for anyone staying at a hotel (that do that in most of Europe). I think those are poor alternatives to constructive federal action, but they're alternatives I'd tolerate.

The lefties aren't happy with a constant influx of illegal immigrants, if only because it's created a shadow economy of cheap workers that are not only being exploited themselves, but are devaluing labor in the US economy as a whole (at least in the southwest).


Yeah, that's where we disagree. I think most lefties are ambivalent about illegal immigration, but against in on principle, against laws against it on principle, and basically happy enough with their cheap produce that they don't care who's getting screwed on the farms. At best, they pay lip service to the idea of doing something about it. At worst they actively advocate for open borders.

And my personal opinion of guest worker programs -- at least the ones proposed under Bush -- is that they're a cop-out designed to do an end-run around labor laws. Having cleaned a lot of toilets in my day, my basic feeling is that if you can't get anyone to do it for less than twenty dollars an hour, you should have to pay twenty dollars an hour for toilet cleaning. It's gross, tiring work, and that's what it's worth. Bringing someone in from Mexico to do it because, "No American will take that job," (and I beg to differ for the obvious reason) takes away the only leverage American workers have for some of the only jobs out there that still don't require a college education. And the fact of it is, every population has a certain percentage of stupid people. Stupid Americans should be able to get good jobs with decent benefits that pay a living wage, and right now that's a real struggle because they're competing in a part of the American labor market where labor laws almost don't apply. Ten years ago I had to work four minimum wage gigs to make my rent every month. These days it's much worse and a guest worker program wouldn't do jack shit to improve that situation, is my opinion on the matter.
73
Judah in general, but particularly @58, @70, and @72,

I never failed to grasp the thrust of your argument -- that increasingly conservative courts, through Terry and subsequent cases, have incrementally lowered the threshold for a legitimate police stop and/or detention.

My response was more roundabout than it should have been: your reading of post-Terry case-law is, in totally, incorrect.

Each subsequent case that you site has been about the REFINEMENT of the court's constitutional understanding of its own Terry precedent, not about altering it. While you are correct in asserting that the Court's conservative bias has caused it to land repeatedly on the side of deferring to police, the basic principal -- that police require a reasonable and articulable suspicion to temporarily detain (and probable cause to search) -- remains intact.

1--------------2--------------3---------------4

Picture it as a sliding scale. 1 represents a police state (the AZ law is pretty close to this). 2 represents Terry (articulable suspicion) at its bare minimum. 3 represents a requirement of probably cause for any type of stop. 4 represents anarchy.

The original Terry case put the limits of police discretion somewhere between 2 and 3. All of the case-law that you site has been edging the standard towards 2. But nothing has suggested that 2 can or will be done away with. And the AZ law is basically a 1.

(Another good analogy is Roe v Wade. Dozens of laws making access to abortion more restrictive and more difficult have been passed by state legislatures and upheld by the increasingly conservative Court. But the basic principle -- that elective abortion is to remain legal -- remains intact.)
74
Oh, and I just looked up Ornelas. Turns out that the issue at play was that the district court found the cop to have had reasonable suspicion. The appeals court then chose to be "deferential" to the district court's finding in review the appeal.

The Supreme Court actually DISAGREED with the appeals court's deference, saying that matters of reasonable suspicion/probably cause are important enough that the appeals court should have re-assessed them anew ("de novo"). I don't know what happened to Ornelas after the ruling, but I'm guess the Supremes had some doubts about the cop meeting the reasonableness standard or they might have been less likely to vacate/remand.

Lastly, Judah, I want to reiterate that ALL of your examples -- even the ones you claim constitute profiling -- involve SOME sort of action on the part of the detained, and that all of the ambiguity arises from how the cops profiled what they were "doing." None of your examples involve people profiled for "being."
75
My response was more roundabout than it should have been: your reading of post-Terry case-law is, in totally, incorrect.


That's nice, that you're that certain, and I appreciate that you expressed your opinion so much more concisely than I managed to. That doesn't mean you're right. Indeed, Justice Marshall's dissent in Adams v. Williams seems to suggest that he felt the Court's expansion of Terry actively contradicted -- rather than just "refined" -- the Terry standard. Given that Marshall, unlike the Nixon appointees who created the majority in Williams, actually helped write the Terry opinion, his perspective on the meaning of the Court's interpretation of Terry seems more persuasive to me than your sliding scale.
76
I might personally agree with the FEARS expressed in Justice Marshall's dissent. But the Court's actual holding -- the only document of precedential import -- did, in fact, rely upon and CLARIFY the basic principles of Terry.

Again, I am not saying that it clarified Terry in a way that I LIKE. But clarifying -- not revoking -- Terry was its sole legal function.

Judah, you're a thoughtful individual and a dedicated debater, but you are wrong. That's not "my" sliding scale. It's an illustration of the most basic principle of constitutional precedent. Brown v. Board overruled Plessy v. Ferguson. Lawrence v. Texas overruled Bowers v. Hardwick. West Coast Hotel Co. v. Parrish overruled Adkins v. Children's Hospital. Terry overruled the prior absolute "probable cause" standard. NONE of your subsequent examples has overruled Terry, which any conceivable upholding of the AZ law would demand.
77
But the Court's actual holding -- the only document of precedential import ... you are wrong.


Yes, I understand that you believe that. And, again, while I appreciate your strict adherence to the idea of precedent, I would contend -- and I think any Constitutional Law scholar would agree -- that the dicta in SCOTUS decisions is legally significant in anticipating the Court's stance on certain policy issues. The Republican-appointee-dominated Court that has existed since Nixon has shown a fairly consistent willingness to allow Terry-type searches on virtually any pretext. All the officer need to in order to receive SCOTUS approval is concoct a legally sufficient lie (he was holding the bags of crack in his hand when I approached the vehicle), no matter how transparent that lie may be, and the Court is on board. So while I would expect the Court to strike down convictions under the Arizona law where a cop actually asked a person for identification based on their race, I can easily imagine the Court upholding convictions where the cop is smart enough to claim the initial stop was the result of a failure to signal a turn, or a jay walking citation, or something equally frivolous. And, under certain circumstances, I could actually imagine the Court saying that, given that being an undocumented immigrant in Arizona is a crime, certain "profile" factors ostensibly other than race would allow a cop to stop someone and ask them for identification. You can't imagine that? Fine. I hope we never see it put to the test.
78
Judah, for someone who is consistently well-reasoned (albeit incorrect) in your parsing of constitutional precedent, you do yourself a disservice when you use weasel phrases like "any Constitutional Law scholar would agree." Dicta are indeed of great interest to legal scholars, and their words have occasionally found their way into later holdings. But the only dictum you have cited here was found in a dissent; its reading of the case in question as anything more than a clarification of Terry remains a distinctly minority opinion.

In the case of the Arizona law, I expect that it will be challenged wholesale, and that the challenge will be argued on the premise that there is no circumstance under which its specific provisions (requirement that citizens/legal aliens to carry documentation at all times, requirement that cops proactively stop people for seeming illegal) could be enforced and pass constitutional muster. I expect that the Court -- yes, even the current Court -- will agree.
79
@ Judah and d.p.

I'm not being sarcastic here - this is honestly one of the most thoughtful debates I've ever seen on a blog comment board. Seriously, normally someone would have gone all Godwin's Law by now.

Speaking of: you're both liberal neocon commie fascist pinko Nazis. And you probably fuck sheep.

Nazi sheep.
80
@78

But the only dictum you have cited here was found in a dissent;

The only dictum I quoted was found in a dissent. I cited, somewhat extensively, the Court's prior recounting of patently contrived lies, told by police officers, in the fact patterns of cases where the Court upheld conviction and passed over the deplorable behavior of law enforcement officers without comment, provided that the lies were properly constructed, no matter how unlikely.

And here, just for an example, I'll ask you to go back and take another look at Ornelas. The issue in that case was, as you said, the standard of review that the lower court should have applied to the trial court's finding on whether the officer had reasonable suspicion. But the following passage is still instructive in anticipating how the Court might look at cases under the Arizona law:

In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists... To a layman the sort of loose panel below the back seat arm rest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court's finding that the officer was credible and the inference was reasonable.

Taken by itself, this assertion would be disquieting to any Fourth Amendment advocate, but there's an earlier assertion in the fact pattern that's worth noting in connection with the above holding and its dicta:

[Officer Luedke] noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the door jam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time.

Thing is, the Magistrate Judge who investigated the case for the District Court ruled, as a matter of fact, that there was no rust on the screw, but upheld the search on, basically, inevitable discovery grounds. The implication is that the officer anticipated his "loose panel" line wouldn't hold up, so he made up a story about a rusty screw. As it turns out, he was giving the District Court more credit than they deserved for their attention to Fourth Amendment issues, but the mere fact that he chose to lie suggests that he didn't think his search had legs.

So basically, the cop was lying, the District Court let it slide, the Court of Appeals tried to doge the issue, and the Supreme Court rubber stamped the District Court's acceptance of the lie. They only ruled on standard of review, but the Chief Justice's comments make it clear what decision he felt the lower court should hand down on remand and I think it's fair to say that, taken as a whole, that case (and many others) suggest that the Court is extraordinarily open to pretextual stops and searches based on, among other things, the race of the suspects.

@79

They're not sheep. They're hirsute goats.
81
Aside to Anne in MA @79:

Thanks for your kind words, and for introducing me to "Godwin's Law." I somehow wasn't aware that the phenomenon had a name.

I am sad, however, to inform you that I made a Nazi analogy all the back at @14. (I was comparing the document-carrying requirement to yellow "Jude" stars; the accusation wasn't leveled against anyone in this thread. Also, this was before I began engaging Judah in constitutional debate.)
82
Judah,

I must admit that I hadn't delved far enough into the fact pattern in Ornelas to make any inferences about how Rehnquist wished the Appeals Court to rule. I wouldn't say that he "rubber stamped" anything that the District Court "accepted," although you are correct that he seemed eager to give weight to the "lens of police experience and expertise."

Do you happen to know what the Appeals Court wound up deciding upon remand (when they gave the probable cause finding its de novo review)?

Like you, I certainly wish there were more case-law suggesting that if a cop doth protest his reasonable suspicion too much, it should be a red flag for heightened scrutiny. But in Ornelas, the crotchety conservative Chief Justice -- inclination to trust the cop aside -- still held fast to the principle that matters of cause are too important to accept prior findings at face value, and must be reviewed anew. I'd call that case a win for fundamental fairness AND due process.
83
@ 81 - Godwin's Law doesn't apply to something that's actually a semi-reasonable comparison (even a melodramatic one). And, as you noted, you didn't call anyone in this thread a Nazi. :-P

Please wait...

and remember to be decent to everyone
all of the time.

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