MALDEF to Arizona: New 'Fix,' Amounts to Nothing More Than a Cynical Manipulation of the Legislative Process

SB 1070 remains unconstitutional despite recent amendments

May 4, 2010

LOS ANGELES, CA – MALDEF President and General Counsel Thomas A. Saenz today released his reaction to and interpretation of the amendments of Arizona SB 1070 signed by Governor Jan Brewer on April 30, as follows:

"All Arizonans should be concerned that Governor Brewer and the proponents of SB 1070 -- who worked for months on the bill and protested repeatedly over the past seven days that they consulted legal counsel to ensure that the law is constitutional -- had to amend the bill only one week after it was signed. This demonstrates how little confidence Arizona taxpayers should have in their elected leaders' assurances that this bill will survive the multiple and costly legal challenges that will ensue.

Unfortunately, beyond demonstrating a high degree of cynicism and undermining any confidence in the sponsors' legal analysis, the amendments do little to ameliorate SB 1070's fatal legal flaws.

First, the amendments do nothing to address Arizona's unconstitutional attempt to regulate immigration, which under our Constitution is an authority that rests exclusively with the federal government.

Second, the attempts to preclude racial profiling amount to nothing more than a statement that Arizona police officers should comply with the Constitution. This kind of hortatory recitation does nothing to prevent law enforcement reliance on equally illegitimate proxies for race and national origin --such as language, accent, appearance, or surname -- or to guide law enforcement in any way as to whether there are any legitimate and observable grounds for suspicion of undocumented status.

Finally, the amendments' purported limitation of officers' duty to determine whether they suspect someone of being undocumented is the most cynical and valueless change of the bunch. Anyone who is familiar with patterns of racial profiling in Arizona or anywhere else knows that pretextual stops can be disguised, after the fact, as resting on some minor violation to place a veneer of legitimacy over a detention and arrest. More important, because SB 1070 purports to create a new state crime for failure to carry proof of status, the law itself carries its own supposed 'justification,' before the fact or after the fact, for a police officer to question anyone about status. While there are serious questions about the constitutionality of such a new state criminal law, SB 1070 attempts to 'bootstrap' its own grounds for law enforcement to question anyone, including a victim or witness of a crime. Thus, because SB 1070's own language undercuts this new 'fix,' the amendment amounts to nothing more than a cynical manipulation of the legislative process."

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