by The U.S. National Archives

      A group calls a law “racist” and thousands flow into the streets to protest and to participate in demonstrations and parades A of opposition.  Those who cry “racist” usually know better.  They usually have read the law and just don’t like its impact.  Those who are led blindly are the truly unfortunate.   Citizens have obligations they must bear if they are to continue to enjoy the benefits of liberty in our Republic.  One of those obligations is to READ before acting out.

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     In the void created by the abject failure of the United States government to protect our southern border, the Arizona legislature and governor stepped forward to protect its citizens.  The Support Our Law Enforcement and Safe Neighborhood Act that was passed and signed into law is well within the prerogative of the State under the terms of the Tenth Amendment to the United States Constitution.

     The courts in this land have held that the Tenth Amendment reserves to the States and to the people the authority to exercise local police powers.  The concept of police powers embraces laws and regulations designed to protect the safety, health and welfare of the citizens.

     Even a cursory reading of the Arizona law makes it clear that its terms fall well within the parameters of those police powers.  Article I, section 8 of the United States Constitution empowers Congress to provide for a “uniform Rule of Naturalization.”  But, Article I, section 10 which sets forth the prohibitions against the exercise of State authority, does not prohibit the States from policing their streets as to the presence of aliens unlawfully in the country or from requiring proof of lawful presence in the state and nation.  The Arizona law makes no pretense to interfere with Congressional authority to establish a uniform Rule of Naturalization.

    The Tenth Amendment to the Constitution reserves to the States and the People all powers not specifically granted to the federal government and/or specifically prohibited for exercise by the States.  From the inception of our dual system of governments, courts have held that the powers reserved to the States and the People are the local police powers.  Within the parameters of those powers are laws and regulations that are aimed at protection of public safety, health and welfare.

    While the Constitution may well place immigration regulations in the hands of the federal government, it does not prohibit a state from exercising the police powers reserved to it by the Tenth Amendment.  The Arizona law does not represent an attempt to usurp the federal authority to establish a uniform “Rule of Naturalization.”  It does not even establish immigration controls or regulations. Rather, it provides the mechanism for state and local law enforcement officers to protect Arizona’s citizens from the criminal and health issues created by aliens unlawfully in this country.  Those issues have been carefully demonstrated and chronicled throughout at least the last decade.

    One of the primary outcries against the act is that it subjects citizens to unlawful stops for the purpose of inquiry into legal status.  The criticism is ill founded.  Either critics have not read the Act, or they have and choose to lie about its effect.  The Act provides for such street inquiries ONLY WHEN A LAW OFFICER HAS MADE A “LAWFUL STOP, DETENTION OR ARREST…IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE OF A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION.”  A “lawful stop, detention or arrest” only occurs when an offense occurs in the presence of the officer or when he has probable cause to believe that a felony is being committed.  So, the Act requires the same legal requirements that are established under both the Fourth and Fourteenth Amendments to the United States Constitution. 

    Once an officer has made a lawful stop, detention or arrest for violation of some “Other law or ordinance,” the Act authorizes a “reasonable attempt. . .when practicable. . .to determine the immigration status of the person.”  BUT SUCH ATTEMPT CANNOT BE MADE UNLESS THERE IS “REASONABLE SUSPICION. . .THAT THE PERSON IS AN ALIEN AND IS UNLAWFULLY PRESENT IN THE UNITED STATES.”

    So, the determination of lawful alien status is dependent upon two separate and distinct FINDINGS OF REASONABLENESS:  one must precede the lawful stop, detention or arrest, and the second must be made after the lawful stop, detention or arrest.  Other parameters on the inquiry are that: 1.  The inquiry as to lawful status must be “practicable” under the circumstances facing the officer, and 2. The inquiry must not be allowed to “hinder or obstruct an investigation.”

   To say that every Hispanic citizen must walk the streets in fear of being required to prove lawful status is just simply a red herring.  For decades police officers have been allowed to inquire as to the identity of a person who is lawfully stopped or detained.  The protections provided to citizens under Supreme Court decisions on stops and detentions are present in the Arizona Act.

   A very important protection is also afforded to citizens even after they have been “lawfully” stopped, detained or arrested, and after they have created a “reasonable suspicion” of being unlawfully within the country—they are “PRESUMED” to be lawfully within the country if they can provide the officer with any of the following:

1.  A valid Arizona driver’s license;

2.  A valid Arizona nonoperating identification license;

3.  A valid tribal enrollment card or other form of tribal identification;

4.  Any valid federal, state or local government issued identification if issuance requires proof of legal presence in the country.

   The Act also provides that every person who is “ARRESTED” shall have his or her immigration status determined.  This provision is not applicable to all citizens, not even those who are simply stopped or detained.  It is applicable only to persons who are ARRESTED.  How can anyone reasonably argue that it is not pertinent to public health and safety to know whether a person who is to be committed to jail or subjected to a bail hearing is lawfully in the country.  Such determination is also pertinent to the public welfare because it will allow local governments to avoid lengthy and costly detention of persons who should be turned over to federal immigration authorities.  There is no governmental benefit to local citizens to be forced to bear the cost of detaining a person who should be deported.

   These provisions relating to the identification process on the street have drawn most of the heat from critics.  Other provisions of the Act relating to proof of lawful status for receiving public benefits are consistent with federal requirements.  Throughout the Act there are requirements that the Act must be implemented in accordance with federal law.

  Since the street identification process is consistent with Fourth and Fourteenth Amendment processes, what is the basis for the complaints?  “Racist.”  That’s the tag line that opponents have used to blind the public into an irrational response.  It is too bad that in the America of today citizens don’t bother to READ FOR THEMSELVES what a law states.  Rather, they allow themselves to be led by radicals from the poles of political ideology.

  Opponents of this Act and any other form of legislation designed to protect the public from the adverse impact of unlawful entry into the country cry “racism.”   Opponents from the extreme Right use the cry of “Socialism” when they don’t like the impact of a law.  Hundreds of thousands of people respond to both cries from the left and right without ever making a reasoned decision as to the rationality of the law.

    Our Founding Fathers warned that the greatest threat to the future continuation of liberty was the two party system coupled with the tendency of party members to blindly follow the leaders.  When I see their fears come to fruition by the day, I am reminded of the childhood game we used to play “Follow the Leader.”  Every kid behind the “leader” of the line had to do any goofy, silly thing that the “leader” did.  Today, that game is played with far higher stakes than those involved in the old school yard game.

    So, those who favor continued flows of unlawful aliens into this country cried “racist” in response to a perfectly valid and constitutional Arizona law.  Given the failure of the United States Government to control the southern and southwestern borders of our nation, Arizona’s legislators and governor had the courage to act to protect their constituents. 

   It took courage because it is certain that all those who voted for the Act, and the governor who signed it knew that the “racist” card would be played.  The risks being borne by the citizens of Arizona are too great to permit continued inaction and ineptness of the federal government to govern Arizona’s streets and neighborhoods.

   For over two years horror stories of violence and property destruction by illegal aliens have filled media accounts—it has been dramatically shown that honest, law abiding Arizona citizens have been besieged by throngs of illegals, the damage done by them as they enter the country, and the costs connected with their damage. 

    No Hollywood stars and celebrities took to the airwaves and the streets to protest the lack of protection of honest Arizonans.  No organizations who favor continued illegal immigration for political and social reasons took to the streets crying “racism” in that the citizens of Arizona, many of them Caucasian, were being harmed and damaged by Hispanic illegal aliens.  No Americans, like lemmings, followed into the streets demanding protection for Arizona’s citizens.  Congress, as usual, talked a lot but did nothing, in fact could do nothing in its current state of impotence.  Cities like Los Angeles did not threaten to boycott Arizona because its honest citizens were being subjected to violence and damage to their property and homes.   

   Within the past two months a good, honest citizen, a hard working rancher was murdered on his own property by an unlawful alien suspected of smuggling drugs. He was Rob Krentz, my friend. Days after the murder, a deputy sheriff was wounded by automatic fire from a drug smuggling unlawful alien.  An assistant police chief in Nogales, Mexico, near Nogales, Arizona was murdered by drug smugglers. 

   The shock of this wave of shootings caused incumbents from the southwest to break into a cold sweat.  “Border security” became their call signals for the first time.  Even “amnesty John McCain” has changed his tune—in almost a comical 360 degree turn he now says we have to finish that “dang wall”.  He is in a heated primary race with true conservative JD Hayworth who has supported strong border controls all along.

   As Congress continued to twiddle its thumbs, mired in its pitiful grid-lock, Arizona’s legislators and Governor acted to provide tools with which law officers can better combat the criminal and economic devastation caused by mushrooming numbers of illegal aliens.  The vast majority of Arizona’s law abiding citizens demanded protection, and Arizona’s government responded with a law that meets all the constitutional standards based on “reasonable” actions by law officers. The law is founded on rational law enforcement principles and is consistent with federal law that allows state law officers to enforce the criminal violation of unlawful entry. 

   Our President condemns the law, the attorney general of the United States threatens to file a lawsuit challenging the law.  Such a lawsuit, which will cost the taxpayers of Arizona and the nation millions of dollars, will fly in the face of federal statutes which are presumed supreme law of the land.

   The United States Code, 8 USC Section 1324 provides that “all. . .officers whose duty it is to enforce criminal laws” are authorized to make arrests for unlawful entry into the nation.  In Gonzalez v. City of Peoria, 722 F. 2d 468, (9th Circuit 1983) the most liberal court of appeals in the federal system held that local law enforcement officers are authorized to arrest illegal aliens pursuant to the federal statute.

   In Gonzalez, the alien argued that only federal officers could enforce the federal law because Congress had acted in such a complete fashion as to pre-empt the field.  The Court rejected the argument, pointing out that Congress specifically removed language from the bill that would have limited enforcement authority to federal officers only.  In a Congressional Research Service Report for Congress, the writers pointed out that “accordingly, the Ninth Circuit declared that local police officers may, subject to state law, constitutionally stop or detain individuals when there is reasonable suspicion or, in the case of arrests, probable cause that such persons have violated, or are violating, the criminal provisions of the [federal immigration laws].”  CRS Report, “Enforcing Immigration Law: The Role of State and Local Law Enforcement”, March 11, 2004.

   Arizona’s new law is consistent with what Congress has provided for enforcement of unlawful entry into the country.  The methods for determining whether there has been unlawful entry are consistent with the United States Constitution as continually implemented by the United States Supreme Court.

   “Racist?”  Hardly.  The law is focused primarily on lawbreakers, and secondarily on lawbreakers who are unlawfully in America.  Sounds like just plain, common sense and sound exercise of local police powers to me.  Much like what was contemplated when the Tenth Amendment was drafted, adopted and then ratified by the States.  Wonder what would happen if every border state in the south adopted a similar law?  Perhaps that would allow members of Congress to go on home, quit talking about border security and take their chances for re-election.

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