Tuesday, May 4, 2010
Saturday, May 1, 2010
Arizona Illegal Immigration
As I am sure you already know Arizona has passed a new illegal immigration law that has been stirring up a lot of controversy. One of the arguments against the immigration law is that it violates the Equal Protection clause of the 14th Amendment. In this paper I will endeavor to analyze the Arizona law under the Equal Protection clause of the 14th Amendment.
The logical place to start this analysis is the text of the Equal Protection clause itself. The 14th Amendment in pertinent part simply says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The first part of this clause is clear. It means that the protection granted by this provision is applicable to any person within the state without regard to residency or in this case citizenship. This much is clear, the clause, whatever it may mean, is equally applicable to citizens and non citizens alike. But it is the second part of this clause that create a problem. What is equal protection? Does this mean that a law that only imposes punishment on murderers deprives those who have killed of the equal protection of the laws? I think not. So what does it mean? The Court has had to grapple with this question and has provided us with an answer.
The first step in an Equal Protection clause analysis is to determine if there is even an equal protection issue. Obviously before anyone can be denied equal protection there must be some kind of disparate treatment. Therefore the first question that we must ask is; does the law create two different classes or categories of persons? If it does not then there can be no violation of equal protection. This requires us to ask how might a law create two different classes or categories of persons?
There are two ways that a law can create more than one class of persons. The first is that the statute discriminates on its face. That means that the law as written creates more than one class. For example if a law said that it only applied to blacks (which is the type of law the 14th Amendment was intended to prevent) then it would be facially invalid. The two classes obviously are blacks on the one hand and everyone else on the other.
In the present case to be subject to a facial attack the statute would actually have to say that it only applies to, in this case, Mexicans. That is to say that the statute would have to proscribe illegal immigrants from Mexico but not from some other country, such as Honduras. I can assure you that even the most dim witted legislators know to avoid such an obvious problem. In fact the statues provides that profiling is prohibited.
The second way that a law might raise an Equal Protection clause issue is if the law as applied creates more than one class. It is important to understand that the question here is not whether the law bears more heavily upon one group of peoples than it does upon another, but whether those who, for example, violate the law are separated into two classes. A simple example should help to clarify this point. Suppose a law sets a speed limit of 55mph on a particular road and requires that anyone who is caught exceeding the speed limit be pulled over and issued a ticket. This statute on its face is valid but suppose further that the police decide that they will only stop speeders who are driving red cars. As you see the classification here is not speeders and non-speeders but speeders who drive red cars and speeders who drive cars of another color. Keeping the analogy in mind we turn now to the law in Arizona.
In order for the otherwise facially valid Arizona law to raise an equal protection clause issue it would be necessary for the police to make the choice to apply the law only to illegal immigrants of a particular class. That means that if the police of Arizona were faced with two illegal immigrants, one from Canada the other from Mexico, the only way that an Equal Protection clause issue could be raised would be if the police allowed the Canadian to walk free but not the Mexican. The fact that the law might have a greater impact on one race than another does not in itself invalidate the law. The Supreme Court has so stated when it said “we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” Washington v. Davis, 426 U.S. 229. Of course until there is some history of the law being applied in a discriminatory manor any consideration of this issue as a reason to invalidate the law would be premature.
Finally, having concluded that the law does not discriminate on its face and that there is no history of the law being applied in a discriminatory manor, there is no equal protection clause issue.
The logical place to start this analysis is the text of the Equal Protection clause itself. The 14th Amendment in pertinent part simply says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The first part of this clause is clear. It means that the protection granted by this provision is applicable to any person within the state without regard to residency or in this case citizenship. This much is clear, the clause, whatever it may mean, is equally applicable to citizens and non citizens alike. But it is the second part of this clause that create a problem. What is equal protection? Does this mean that a law that only imposes punishment on murderers deprives those who have killed of the equal protection of the laws? I think not. So what does it mean? The Court has had to grapple with this question and has provided us with an answer.
The first step in an Equal Protection clause analysis is to determine if there is even an equal protection issue. Obviously before anyone can be denied equal protection there must be some kind of disparate treatment. Therefore the first question that we must ask is; does the law create two different classes or categories of persons? If it does not then there can be no violation of equal protection. This requires us to ask how might a law create two different classes or categories of persons?
There are two ways that a law can create more than one class of persons. The first is that the statute discriminates on its face. That means that the law as written creates more than one class. For example if a law said that it only applied to blacks (which is the type of law the 14th Amendment was intended to prevent) then it would be facially invalid. The two classes obviously are blacks on the one hand and everyone else on the other.
In the present case to be subject to a facial attack the statute would actually have to say that it only applies to, in this case, Mexicans. That is to say that the statute would have to proscribe illegal immigrants from Mexico but not from some other country, such as Honduras. I can assure you that even the most dim witted legislators know to avoid such an obvious problem. In fact the statues provides that profiling is prohibited.
The second way that a law might raise an Equal Protection clause issue is if the law as applied creates more than one class. It is important to understand that the question here is not whether the law bears more heavily upon one group of peoples than it does upon another, but whether those who, for example, violate the law are separated into two classes. A simple example should help to clarify this point. Suppose a law sets a speed limit of 55mph on a particular road and requires that anyone who is caught exceeding the speed limit be pulled over and issued a ticket. This statute on its face is valid but suppose further that the police decide that they will only stop speeders who are driving red cars. As you see the classification here is not speeders and non-speeders but speeders who drive red cars and speeders who drive cars of another color. Keeping the analogy in mind we turn now to the law in Arizona.
In order for the otherwise facially valid Arizona law to raise an equal protection clause issue it would be necessary for the police to make the choice to apply the law only to illegal immigrants of a particular class. That means that if the police of Arizona were faced with two illegal immigrants, one from Canada the other from Mexico, the only way that an Equal Protection clause issue could be raised would be if the police allowed the Canadian to walk free but not the Mexican. The fact that the law might have a greater impact on one race than another does not in itself invalidate the law. The Supreme Court has so stated when it said “we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” Washington v. Davis, 426 U.S. 229. Of course until there is some history of the law being applied in a discriminatory manor any consideration of this issue as a reason to invalidate the law would be premature.
Finally, having concluded that the law does not discriminate on its face and that there is no history of the law being applied in a discriminatory manor, there is no equal protection clause issue.
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