The first good critique I have seen from a doubter of the Arizona law comes from my friend Bill West, who used to be a top federal immigration official in Florida. Bill agrees with me that there is no valid legal objection to the new state statute. His reservation is practical: in most cases involving brief police stops to investigate criminal activity that is not particularly serious, it won’t work; and in most cases involving arrests for serious offenses, it is superfluous.
As usual, the problem is the federal government. As Bill explains it to me, he doesn’t think the law will work because:
The immigration system — that record system that Arizona law enforcement officers are supposed to rely upon to “verify” illegal status under 8 USC 1373(c) — is unreliable and ineffective.
The state lawmakers envisioned that the Arizona state and local law enforcement officers who encounter their suspected illegal alien suspects would do something like call in a “status check” through their dispatcher. They probably assumed the dispatcher would then make a quick query into the local Border Patrol station or perhaps the ICE Law Enforcement Assistance Center in Vermont, and would get a near immediate feedback. Or lawmakers figured something similar would occur if police were processing a prisoner arrested for another charge.
That “works” with a definitive feedback in only a small percentage of cases. Most such inquiries require significant follow up by ICE or CBP (Customs & Border Patrol), and that only happens if the alien is detained for a serious felony offense. If the suspected illegal alien is detained for a minor violation and that illegal status cannot be confirmed, the suspect will be released. That will happen far more often, especially since many of those encountered will be Mexican aliens with false identity documents and false identities which will not register immediately in the ICE or CBP databases short of fingerprint checks — and those fingerprint checks won’t occur in brief street encounters like traffic stops. By contrast, the existing protocols for checking suspected illegal aliens arrested for serious felonies allows for the extended follow up and this new law will have little effect on those.
I think these are valid concerns, though they don’t fatally undermine the point of having the law. To be sure, there will be lots of instances where a false ID won’t trigger discovery of the fact that someone is in Arizona and the U.S. illegally. I believe, however, that some false IDs will trigger that discovery, and some will be sufficiently sloppy false IDs that they will increase the evidence of criminality, amounting to the probable cause needed to justify an arrest (e.g., for obstruction of justice or making false statements to a police officer). That could then trigger the more extensive arrest processing that Bill refers to, during which fingerprints will be taken and the person’s true identity (and lack of lawful immigration status) will be discovered.
I’d also note that, when police stop people on suspicion of criminal behavior that is not serious (e.g., a minor traffic violation), the law does not permit or encourage police to detain people interminably so an immigration status check can be done. Instead, the law says the attempt to determine whether a suspected illegal alien is in fact an illegal alien must be “reasonable” and only undertaken “when practicable.” That makes it sound like lawmakers probably did realize that cops often don’t get quick, definitive answers when making inquiries of federal databases. That’s yet another demonstration that the law is an appropriate, measured response to Arizona’s illegal immigration problem.
Still, Bill’s point is a good one: there will be many, many instances where the law either won’t work or won’t be necessary. I support the statute, but we will have to monitor its effectiveness in order to make a reasoned judgment about whether it was really worth doing in light of all the demagoguery it has prompted. I suspect the greatest value of the law will be the message it conveys to illegals that Arizona is serious about cracking down. That by itself will cause a reduction in Arizona’s illegal immigration problem. And while many illegals will simply go to other states, at least some will decide not to enter our country unlawfully.