Insight into Arizona’s New Immigration Law - An interview with Rep. Steve King

On April 23, 2010, Arizona enacted a new law requiring law enforcement officers to determine an individual’s immigration status when a reasonable suspicion exists that the person is an illegal alien.  Arizona law requires the determination of immigration status only after police have made a “lawful stop, detention or arrest.”  President Obama and Attorney General Eric Holder have both criticized the Arizona law. Political pundits in the media have also made wild, unfounded accusations about what the law requires.

I was able to pose a series of questions about the Arizona law to Congressman Steve King (R-IA) who, as a member of the House Immigration Reform Caucus, is one of the most knowledgeable Members of Congress on the subject of immigration.  The following is the Congressman’s response to my questions:

Q:    Opponents have mischaracterized Arizona’s new law. Can you explain what the law actually requires?

A:    Well the law just mirrors federal immigration law. It requires local law enforcement to enforce federal immigration law and it requires them to follow-up when they have a reasonable suspicion that they have encountered someone who is violating the law.  So right now, under the Arizona law, a law enforcement officer can’t stop someone unless they have probable cause. That might be a tail light out, or an expired license plate tag, or somebody speeding.  It could be somebody running out of a bank with a gun in his hand. That’s probable cause. At the point when an officer has reasonable suspicion, they can then ask follow-up questions on immigration status.  If an individual hands the officer a matricula consular card, that could give rise to reasonable suspicion and the officer should follow up. I wrote the reasonable suspicion law in Iowa. It is something that had been law since 1998 and Iowa has had zero constitutional challenges, no litigation, in fact no complaints that I know of. So I am comfortable with the language that they have used in Arizona.

Q:    What does “reasonable suspicion” mean?  Do police regularly rely on “reasonable suspicion” in connection with criminal investigations?

A:    Law enforcement officers always use reasonable suspicion. They are comfortable with the term.  They understand its meaning and we are comfortable with it as a society.  This is an unnecessary demagoguery that is trying to scare people

Q:    The law also requires that the stop, detention or arrest be in connection with the enforcement of another law or ordinance. Is suspicion of immigration status a “primary offense”?

A:    Well the officer is not going to know someone’s immigration status, but he can’t stop someone solely on the basis of race. There needs to be some violation of law before an officer can actually stop someone. Individuals are protected and reasonable suspicion cannot be based solely on race or ethnicity.  So I think they have done everything they can to protect people. In fact there are entire communities in Arizona where the majority of the law enforcement is Hispanic, and to presume that these law enforcement officers are racist is an offense to them. For the most part they are good and honest people who want to uphold the law.

Q:    Are there civil rights protections contained in the Arizona law?

A:    Yes. Civil rights protections in the law prohibit the utilization of race, ethnicity or national origin as the sole factor for developing a reasonable suspicion. So the bottom line is, it’s against the law in Arizona to pull someone over based solely on race and then to inquire about immigration status. A crime has to be committed first for an officer to inquire an individual’s immigration status.

Q:    One critic has suggested that Arizona’s law will single out legal immigrants by requiring them to carry documentation.  Hasn’t Federal law required this of legal immigrants for almost 70 years?

A:    Federal law requires people who are not citizens of the United States to carry their immigration documents. If they are 18 or older they have to carry them at all times, this has been the law and it was never objected to before. Opponents of the Arizona law didn’t object to this provision in federal law last week, so why would they object to it now? 

Q:    Given those facts, isn’t Arizona simply responding to a failure on the part of the Obama Administration to take immigration enforcement seriously?

A:    That is the case with Arizona. Phoenix has the second highest kidnapping rates in the Western Hemisphere; the highest rate in the United States. Their crime rates have gone up and there is violence and deaths taking place at the border, some of it spilling over to the United States. Arizona has passed this law in desperation, a primal scream of desperation. They didn’t want to do this. They would have liked the federal government to do their job but sadly the Federal government has not. Now we have Arizona taking over the job of the federal government. That should tell this Administration something: start doing your job! The President and Secretary Napolitano are not doing their job, and that is what led to this law being passed in Arizona.

Q:    Is there anything in Federal law that preempts the Arizona law or is the Arizona law consistent with Federal law?

A:    I asked that question of Attorney General Holder, if there was anything in the AZ law that would be preempted by Federal law. He was totally unfamiliar with any constitutional objections or any statutory language in federal law that would preempt Arizona law. The Attorney General was unfamiliar with any existing case precedent that would prohibit Arizona law enforcement officers from enforcing the federal immigration law.  So on all three fronts, the constitution, federal statues and controlling case law, the Attorney General could not cite a single example, or any rational thinking, that would point to unconstitutionality, preemption or case law that supports the argument that Federal law pre-empts Arizona from enforcing this law.  I think it will be found constitutional and consistent with current federal law and not preempted by federal law. It is breathtaking that the Attorney General and President would make comments that would appear to be designed to incite racial anger and frustration in America, after not having read the bill and not having been briefed on the bill.

(Note: click here to view a video of Congressman King’s exchange with Attorney General Holder over the issue of Federal pre-emption).

Q:    A majority of Americans polled support the Arizona law. Is this support by the American people well founded?

A:    Well 70% of Americans support the law and around 50% of Hispanics support the law according to a poll I saw a few days ago.  In fact, I intend to go down to Arizona in early June and do what I can to support Arizonians and the rule of law. This is part of the federalism concept, if the federal government can’t, or won’t, then the state must and that is what we are seeing happen in Arizona.

You know I didn’t see this sentiment in Arizona two or three years ago. Not even during the intense national debate we had on amnesty that was initiated by President Bush and the Kennedy-McCain Senate legislation. Arizona wasn’t ready to pass a law like this at that time, so to do this now shows how desperate the situation is. They want to control their state and control their border and the federal government won’t do it.  So the state has stepped up to the task. I want to compliment the Arizona legislature and Governor Brewer for stepping up and especially the officers who will enforce these laws. They deserve our respect and gratitude for the job they are doing.

A plain reading of the Arizona law would lead anyone to conclude that Congressman King has, on all counts, fairly described the purpose, intent and manner in which the Arizona law will be enforced.  It is too bad that the President of the United States and the Attorney General of the United States have not done the same and that they would choose to engage in demagoguery to attack a law that the people of Arizona, and America as a whole, overwhelmingly support.

Christopher Jaarda is an attorney with The John Hancock Committee for the States. His previous experience includes working as a legal counsel and policy analyst for the Republican Policy Committee, one of the key leadership offices, in the United States Senate. His experience includes tax, budget, legal and national security issues."