There’s nothing libertarian about Arizona’s immigration law

David Bier Immigration Policy Analyst, Niskanen Center
Font Size:

“As a civil libertarian … I don’t want a police state. I want a reason to do something.” That was Arizona S.B. 1070 author Russell Pearce Tuesday at a Senate hearing on the controversial immigration law. When former Obama adviser Van Jones called libertarians “anti-immigrant bigots” earlier this month, libertarians were confused, but when individuals like Pearce — who has endorsed a white supremacist for Mesa City Council — claim the title, Jones’ mistake becomes more sensible. But to be clear, nothing about S.B. 1070 can be misconstrued as “civil libertarian.”

The law encourages racial profiling of all Hispanics, including citizens. Under this law, legal Hispanic residents can be harassed, detained, arrested and even imprisoned. Section 2(B) requires police officers to check the immigration status of individuals during “any lawful contact” if “reasonable suspicion” exists that the individual is undocumented. Section 6(A) adds that officers may make an arrest “without a warrant if the officer has probable cause to believe” that the person is undocumented.

What becomes critical then are the definitions of “reasonable suspicion” and “probable cause.” Arizona’s Police Training Manual states that “reasonable suspicion/probable cause” includes factors like dress, demeanor, difficulty speaking English, unexplained nervousness, refusal to make eye contact and being in a location where “unlawfully present aliens are known to congregate.” Where would that be other than Hispanic neighborhoods? And how exactly do undocumented immigrants dress? What’s their demeanor like? Is there any doubt that Hispanics would be nervous in such a situation? These criteria are an invitation for racial discrimination.

Why might a citizen be nervous? While the Constitution bans laws that force citizens to carry their papers — as in a police state — S.B. 1070 is a de facto “papers-please” law. Because it requires aliens to “carry an alien registration document” at all times, Hispanics who are stopped without identification become targets. Consider the case of an Arizona truck driver who was detained just after the Arizona Legislature passed the law, but before it was supposed to take effect. The driver, who has some difficulty speaking English, was detained, and despite handing over his driver’s license, was taken to a federal Immigration and Customs Enforcement center. Other Hispanic Americans report similar treatment in Arizona.

Hispanic Americans are also explicitly targeted. By criminalizing “harboring,” “transporting” or “encouraging” undocumented immigrants to stay in Arizona, U.S. citizens who have family members living without documents could be targeted. Moreover, pastors and social workers who aid and give rides to immigrants could also be targeted, an issue the A.C.L.U. has raised in its lawsuit challenging S.B. 1070.

Other provisions empower police to stop any vehicle if the officer has “reasonable suspicion” to believe an undocumented immigrant is traveling in it — again, “dress” applies. They can seize the vehicle if the driver is “transporting” an undocumented alien, even if that alien is a child and the driver is an American citizen. Moreover, the creation of a Gang and Immigration Enforcement Team to raid Hispanic neighborhoods where immigrants “are known to congregate for work” is an advertisement to Hispanics to stay away from law enforcement at all costs. Many crimes likely go unreported out of fear that family members or even victims will be deported.
S.B. 1070 apologists stoke fears about immigrant terrorists and “beheadings in the desert,” but if their concern was only about immigrant criminals, S.B. 1070 would only require police to check the immigration status after a lawful arrest. It doesn’t, probably because the authors know that such a provision would result in very few arrests, since immigrants actually have much lower rates of criminality than natives.

Pearce might not have wanted to create a police state when he wrote S.B. 1070, but he has. And for what? While restrictionists rejoice that workers have fled the state, the economy has suffered. Arizona has dealt with labor shortages that have cost the state billions, contributing to Arizona’s sluggish recovery and helping keep its unemployment rate higher than the national average.

Self-described libertarians who advocate draconian immigration enforcement are giving libertarianism a bad name. Restrictionists like Pearce who claim the title may have informed Van Jones’ opinion that libertarians are “anti-immigration bigots,” and unless libertarians speak louder in favor of immigrants, they will cause much worse harm in the future. The philosophy of liberty is built on a single premise: people — all people — deserve equal protection to live and work as they see fit. Any other position removes the liberty from “libertarian.”

David Bier is a policy analyst at the Competitive Enterprise Institute. He holds degrees in political science and philosophy from Grove City College in Pennsylvania. He specializes in immigration and environmental policy, focusing on the value of human beings as the ultimate resource.