The Supreme Court’s recent decision upholding portions of Arizona controversial immigration law already has been at least temporarily overshadowed by the decision a few days later upholding Obamacare. However, the immigration decision, which grants broad powers to local law enforcement to inquire into the immigration statuses of people they stop, establishes a major precedent expanding police powers that should not be overlooked or forgotten — especially not by those who claim the mantle of conservatism.
The key questions in the immigration case — which pitted the federal government against Arizona (and by implication a number of other states that have enacted similar anti-illegal immigration laws) — were 1) whether certain provisions of Arizona’s law impede what largely has been a federal responsibility (immigration enforcement), and 2) whether the law’s “show me your papers” provision is constitutional.
It is indisputable that the federal government has done a terrible job of dealing with illegal immigration. Arizona simply took matters into its own hands two years ago and — with little regard for the principle that the federal government should no more meddle in those areas of state and local government responsibility than should states interfere in those matters properly within the federal sphere — passed its own law empowering local law enforcement officials to demand that people who are taken into custody or lawfully detained establish that they are lawfully in the United States.
The Supreme Court threw out three provisions of Arizona’s immigration law, on the basis that they were preempted by federal immigration laws. Importantly, however, the high court upheld the “show me your papers” portion of it. That should trouble conservatives as much as it troubles liberals.
Conservatives, who purport to be against giving the government more power, are now praising a law that does exactly that. In their understandable support for measures to make the government actually stop illegal immigration, these conservatives have happily ceded more power to the government, significantly enhancing the power of police to detain persons and to place the burden on those persons to prove they have not broken a law.
While there has been no evidence to sustain claims that Arizona’s law has been employed to racially profile people, the continuing concern that such accusations may arise could result in the police simply asking everyone they stop to “show their papers” and prove that they are in the country legally, so as to avoid any hint of racial profiling.
This precedent — that a state can pass a law allowing police to force people to prove that they are not violating a particular law (i.e., being in the country unlawfully) — runs afoul of the Fifth Amendment, which protects people from being forced to incriminate themselves. This alone ought to trouble conservatives, though so far it doesn’t seem to be.
Arizona’s immigration law also provides a precedent for allowing states to use a police stop for one particular reason (such as a traffic violation), as the predicate for forcing individuals to incriminate themselves on another matter. If a state wants to find out if a person has done something else improperly — not paying their taxes, being behind on child support payments, possessing a firearm in violation of a federal, state or local law, for example — they now have a precedent in this immigration decision to do just that. And many Republicans and conservatives are strangely silent. Perhaps this is one reason so many people are fed up with traditional political distinctions and labels.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.