Arizona Immigration Law (II)

States legislators in support of the measure echoed similar sentiments arguing they did what they had to in the face of the federal government’s indifference.   Arizona was merely complimenting (but not contradicting) federal policy and/or filling a void where no policy existed. Tom Price, chairman of the Republican Study Committee inferred, "States like Arizona should not have to act on their own, but Washington's decades of neglect for border security leave them no choice."

Meanwhile, Critics of the law were just as passionate in their opposition to the bill. First, President Obama’s administration, one of the harshest opponents of Arizona SB-1070, wasted no time bringing an action suit against the state of Arizona seeking an injunction to prevent the law from going into effect. Second, at least four pending lawsuits against the Arizona law sought similar ends, one of which was allowed to move forward after a federal judge threw out a challenge by Gov. Jan Brewer and others. U.S. District Court Judge Susan Bolton issued a detailed ruling denying the governor’s motion to dismiss the claims. In her ruling, she found that the plaintiffs, led by the Phoenix advocacy group Friendly House and the American Civil Liberties Union had enough ground to bring the lawsuit. Similarly, Mexico also challenged the measure and so have civil libertarians, arguing the new policies violate the equal protection clause of the 14th Amendment as well as the Fourth Amendment's search-and-seizure clause.

Furthermore, opponents of the measure refer to it as a “vague law” due largely to the obscure language used to write the law. Term such as “reasonable suspicion” as police discretion is a perfect example since the lack of specificity in the language casted too wide a net and may help target innocent citizens unfairly. Other scholars argued the vagueness of the law may even --as it pertained to a highly critical Hispanic press-- provided government the tools to target and harass individuals deemed as nuisances; hence, a chilling effect preventing the exercise of their freedom of expression or contributions to the marketplace of ideas. The Obama administration hopes its aggressive actions against Arizona will send a strong message and deter states such as South Carolina and Texas, among many, from considering their own version of Arizona SB-1070.

As the United States vs. Arizona makes its way to the Ninth Circuit Court of Appeals on Nov. 1, “I will battle all the way to the Supreme Court, if necessary,” exclaimed the governor vowing to appeal Judge Bolton’s ruling. Much to the contrary, the federal government is allocating and utilizing all of its resources to ensure that the immigration debate does not go down that slippery slope: actions that could unleash unprecedented ripple effects throughout the states, or worse, erode the federal government’s preemptive supremacy.

Discussions around the Arizona Act unveiled various interesting opinions. Some looked to Aristotle and his golden mean argument in pursuit of a balancing act. Others vehemently reject Gov. Brewer’s campaign as a political stunt fueling an already highly divided, saturated atmosphere. Still, other people highlighted the judicial process to frame their arguments for or against the Arizona measure. For instance, some feared that the failure to carefully weigh the competing interests of Arizonians against those of the greater society while taking into account the role of the federal government might cause certain states to target individuals unfairly. A system of checks and balances, argued some members, is a necessary tool to ensure that states do not abuse their power.

In addition, many concerned citizens stated while it was important to consider the rights of American citizens, it was equally important to consider their lives as it relates to the economic health of particular states. Jobs offered to illegal immigrants, they argued, are jobs denied to American citizens and could potentially raise unemployment rates; hence making life miserable for Americans. While some members of the press conceded the necessity for immigration reforms were long overdue, they also highlighted the importance of a comprehensive approach to ensure uniformity in the application of the law. Those analysts perceive the problem as a breakdown in society rather than a problem of particular ethnic groups.

In spite off obvious disagreements on immigration issues, two ideologically consistent views emerged from the discussions: a consensus on the supremacy of the US Constitution and the importance of the judicial process in ensuring careful analysis of a problem by qualified and trained professionals before the application of any piece of arbitrary legislation.

Rapadoo,

 Sources:

1)    Nill, A. (Producer). (2010). Social and economic justice. [Web]. Retrieved from http://thinkprogress.org/2010/05/14/arizona-poll-immigration/

2)    Bloomberg, M. (2010, April 28). How Arizona new immigration law will hurt America: mayor Michael Bloomberg assails the new immigration statute. New York Daily news, Retrieved from http://www.nydailynews.com/opinions/2010/04/28/2010-04-28_how_arizonas_law_will_hurt_america_mayor_michael_bloomberg_assails_the_new_immig.html.

3)    Gladiel, P. (2005, July 6). Jobs Americans won'd do? An open letter to president George w. bush. Retrieved from http://vdare.com/gadiel/050706_letter.htm.

4)    Markon, Jerry, & McCrummen, Stephanie. (2010, July 29). Arizona immigration law sb 1070 - judge blocks some sections.http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072801794.html.

5)    NEPA Conservative , Initials. (2010, April 30). Arizona versus federal immigration law. Retrieved from http://news-political.com/2010/04/30/arizona-versus-federal-immigration-law/.

6)    Archibold, R. C. (2010, April 23). The new york times. Retrieved from http://www.nytimes.com/2010/04/24/us/politics/24immig.html       

Gerson, M. (2010, April 29). The washington post. Retrieved from http://voices.washingtonpost.com/postpartisan/2010/04/why_conservatives_should_oppos.html 

Arizona Immigration Law (I)

 Stare decisis is a school of thought that encourages judges to interpret and apply the laws based on precedents established by other court rulings. Based on the common law, this process ensures internal consistency and predictable application of the entire body of law. However, in the case of Arizona SB-1070, legal scholars wonder what the precedent for San Francisco’s Ninth Circuit Court of Appeals will be on November 1, 2010 when it hears United States v Arizona. After all, Arizona is pioneering this immigration legislation initiative, an area seen exclusively, through the eyes of the Supreme Court, as a federal domain except in certain conditions.

Arizona SB-1070 makes it a state misdemeanor offense for an alien to be in Arizona without carrying required federal documents, bars state or local officials from restricting enforcement of federal immigration laws, and cracks down on people who shelter, hire or transport illegal aliens. Failure to comply with the new law would result in a $500 minimum fine as a first offense, and a fine up to $1,000 dollars and 6 months in jail for second time offenders. This controversial immigration law provoked a heated debate nationwide even before Jan Brewer, Governor of Arizona, signed the bill into law on April 23, 2010. While critics and proponents alike agreed that it is the broadest and strictest immigration measure in generations, their opinions of the legislation have drawn sharp contrasts. Supporters argued the law forbids the use of race as the sole basis for investigating immigration status. On the other hand, critics decried the legislation encouraged racial profiling, an open invitation for harassment and discrimination against Hispanics regardless of their citizenship status.

Since immigration debates in the U.S. usually reflect the social, economic and political climate of particular periods, Arizona’s bold attempt on reform necessitates a historical frame to contextualize it. In addition, arguments on both sides of the debate also provide some context as it pertains to the law’s content and its affects on Arizonians. Finally, Arizona SB-1070’s deliberate intrusion into exclusive federal domains puts the system of federalism to task, thus thrusting Arizona in a direct conflict with the federal government.

“Yes,” declared Senator John McCain –Arizona republican and former presidential candidate— “we need to control our borders. No one argues with that... But we don’t need ballot initiatives that make people think we want them to abandon their hopes because some of us don’t believe the American Dream is big enough to share anymore.” Yet, the history of immigration reform in the U.S. sometimes paints a very different picture than the comprehensive one the senator described. The Indian Removal Act of 1830, the Chinese Exclusion Act of 1882 and the 1965 Immigration Act were race-based. The Immigration Reform and Control Act of 1986 and 1996, granted amnesty to thousands of immigrants while attempting to double the U.S. Border Patrol to 10,000 in five years at the most heavily trafficked areas of the U.S.-Mexico border. More recently, the passage of the USA PATRIOT Act, giving the federal government broad powers to indefinitely detain suspected terrorists has highlighted the discourse of overreaching governance, ethnicity, race and social stratification.

According to the U.S. Department of Homeland Security, Arizona housed about 460,000 undocumented immigrants and until the passage of SB-1070, immigration offenses were violations of federal law, something most local law-enforcement agencies could not enforce. The legislative approval came after months of impassioned debate, fueled – to a large degree-- by an outrage over the murder of rancher Robert Krentz shot along well-known smuggling routes near the border. Among the Border States, Arizona has the largest number of illegal aliens crossing from Mexico and holds the most arrests by US Border Control. The measure passed the Arizona House by a 35-21 vote with exclusive Republican support. It then passed the Senate with a vote of 17-11 supported by all Republicans except Sen. Carolyn Allen. Both House and Senate Democrats opposed the bill. As a result, many legal challenges disputing the constitutionality of the law immediately followed.

Although public opinion generally differs vastly on immigration issues, the Arizona measure is popular in that state and elsewhere. According to the latest polls, 52 percent of Arizonians supported the legislation and while some residents did not support it whole-heartedly, they expressed the need for immigration reform. Supporters of the legislation have attempted to draw a clear distinction between Arizona’s stance on illegal immigration and immigration in general. They stress that the issues surrounding immigration in Border States were complex and did not reflect the black and white, clear-cut options other states had. While some call the Southern part of Arizona the “free-for-all” half, residents grow increasingly wary of the prevalence of violent crimes spilling over from Mexico and its drug lords and the flood of illegal aliens invading their state.  Sen. Ron Gould, a Republican from Lake Havasu City declared, "The U.S. Constitution says the federal government shall protect states from foreign invasion. The federal government has not done that. People get attacked continually; hence, Arizona needs to act."

Rapadoo,

Privacy, a Right to a Privilege (I)

         

         The great Constitution of the United States of America contains no expressed right to privacy, which leaves the Supreme Court in an uphill battle trying to establish some general guidelines as to what constitutes an individual's right to privacy.  For the most part, the Bill of Rights suggests that the Framers of the Constitution had some concerns about protecting specific aspects of individual privacy. For instance, the privacy of beliefs framed in the First Amendment and privacy of the home against demands to house soldiers guaranteed in the Third Amendment. Furthermore, the Fourth Amendment addressed privacy of persons and their possessions against unreasonable searches, and the Fifth Amendment's privilege against self-incrimination provides protection for the privacy of personal information. The Ninth Amendment states that the "enumeration of certain rights," in the Bill of Rights, "shall not be construed to deny or disparage other rights retained by the people." 

Scholars agree that the meaning of the Ninth Amendment is somewhat elusive, thus privacy issues not only remain highly controversial but also constitute a slippery slope, which some attributes mainly to the ever-expending worlds of innovation and technology. As people get more comfortable with the illusions created by the Internet and its multiple dimensions, they tend to get complacent and less concerned about its implications. At this rate, the so-called right to privacy may soon become a right to a privilege. Unless people implement proactive and pragmatic solutions to retain vanishing values of freedom, this once natural right will dissipate.

         It is not a secret: an individual's right to privacy, a vital component of any healthy democracy, has become an endangered species in American society.  This era of Facebook, YouTube, twitter, “War on Terror” and our evolving Internet culture is rapidly redefining societal norms. Faithful members of social networks have little to no control over their own privacy and social networks have demonstrated that they are not bound by loyalty or ethics with respects to their privacy rights. However, people are willing to take enormous risks just to be cool or fit in.

Careful analysis of this relatively new phenomenon unveils three main factors eroding individuals of their rights to privacy. First, the overreaching hands of government, which American citizens have experienced first hand with the passage of the Patriot Act one month after September 11, 2001. Second, the rejection of citizenry for the seemingly limitless powers of consumerism via the Internet poses real threats to privacy. Both Sparks and Sunstein’s observations have been proven valid and on point in their assessment of the problem. Third, the rise of social media empires raises serious concerns among experts with their deliberate, yet subtle assaults on privacy rights. So-called social media have renegotiated the values of societal norms while reframing the argument with regard to what is acceptable or not.  Rights so fundamental to the human experience should undeniably be a priority to all citizens, but society’s plunge towards the realm of the privilege of privacy seems inevitable.

         One Aristotelian school of thought successfully argued happiness is the end to all things, which means that humans engage in a perpetual pursuit of happiness. It is natural, reasoned Aristotle, for people to live social lives because only as a member of society can individuals truly be happy. This perception implies successful societies require some structure and form of government to survive. For instance, the United States of America utilizes what experts call a deliberate democracy as opposed to other countries like China, which embraces communism, and Burma also known as Myanmar that is military ruled or a dictatorship.

While determining factors of successful forms of governments are entirely subjective, responsible governance shares a common interest: that is finding the intricate balance between the powers of government and the rights of individual citizens. Here again Aristotle's notion of temperate mean comes into play. He wrote in his book Nicomachean II (page 6); "Now virtue is concerned with passions and actions, in which excess is a form of failure, and so is defect, while the intermediate is praised and is a form of success; and being praised and being successful are both characteristics of virtue. Therefore virtue is a kind of mean, since, as we have seen, it aims at what is intermediate." Successful or virtuous societies must find that intermediate mean, which provides government with the necessary tools to promote the national interest while validating its citizens’ rights to pursue their own happiness. 

         It is therefore safe to infer individuals deprived of the right to privacy could eventually lose their freedom of speech as well. For as history has taught us, people get self-conscious to the point of modifying their behaviors when under the watchful eyes of influential others.  Hence, just knowing the government is on the other end of our phone calls, in our living rooms, workplace, or church instills chilling effects preventing citizens’ free speech. Solove made a similar argument in his "Nothing to Hide" article. He stated that the "utilitarian balancing between individual rights and the common good rarely favors individual rights—unless the interest advanced on the side of the common good is trivial.  Greater society will generally win when its interests are balanced against those of the individual."

Following this logic, the equilibrium that kept the U.S. government and its citizens on equal footing when it came to privacy rights was lost with the passage of the Patriot Act after the deplorable events of September 11, 2001. Granted, a country under attack or in a state of war must undertake drastic measures to fortify its borders and protect its population. Further, the utter shock and horrors of airliners striking the World Trade Center towers was undoubtedly traumatic for all Americans and will haunt their dreams for years to come. Nevertheless, as the government tried to be swift in its response, it alienated the rights of its citizens.

In addition, the Telecommunication Act between 2001 and 2006 tipped that balance even further towards the government and its corporate partners. To the surprise of many, the National Security Agency (NSA) urged AT&T, Verizon, Quest and BellSouth to share records of their customers’ conversations with the government without any legal authority. Arguing the legality of such actions, critics imagined obtaining warrants on legal grounds to combat terrorism would be relatively easy for the NSA in a post-9/11 era. However, it insisted on such controversial and harmful requests fully aware of its implications.

AT&T, Verizon and Bellsouth complied with the NSA’s requests forfeiting the rights of their customers; however, Quest challenged the National Security Agency to produce legal documents for their request. This example validates Solove's point: it is simply not enough to say that since one has nothing to hide, it is ok to allow government and its agencies to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored.

These deliberate and intrusive actions undermine the social value of privacy, considered by many theorists to be inherently personal that validates the sovereignty of individuals. Can we, for example, call prisoners free men and women simply because they can eat, sleep, play, and even study while in incarceration? The forfeiture of their rights comes at the hands of their crimes; consequently, prison guards monitor them constantly.

The evidence seems clear: too much censorship constitutes some form of social control, a punishment for deviance, not sovereignty for free citizens. Freedom of expression has a linear relationship with privacy rights and government boundaries; hence, any abuse of authority or variation in one factor will affect the other factors directly. Such rationale compelled observers to ask one question: how far the government will go to deny the rights of its citizens in the name of the greater good?

Rapadoo,