ACLU Challenges Arizona Immigration Law

arizona boycottMonday, The American Civil Liberties Union (ACLU) and a coalition of civil rights groups which include the Mexican American Legal Defense and Educational Fund (MALDEF), the National Immigration Law Center (NILC), the National Association for the Advancement of Colored People (NAACP), and others, filed a class action lawsuit in the U.S. District Court for the District of Arizona challenging the state’s new immigration law, SB-1070. The suit, which represents labor, domestic violence, day labor, human services and social justice organizations, along with ten individuals who would allegedly be subject to harassment or arrest, claims that not only is SB-1070 “un-American,” it’s also unconstitutional.

While proponents of SB-1070 maintain that the measure is merely a reiteration of the federal immigration laws that are already in place, the ACLU’s official complaint names a variety of state and federal statutes that it conflicts with. More specifically, the ACLU identifies four basic legal principles that the law contradicts:

  • The Supremacy Clause, Article VI, Section 2, of the U.S. Constitution. The Supremacy Clause mandates that federal law preempts state law “in any area over which Congress expressly or impliedly has reserved exclusive authority or which is constitutionally reserved to the federal government, or where state law conflicts or interferes with federal law.” The complaint claims SB-1070 “is void in its entirety” and also points out that “the Supreme Court has held that the Federal government’s power to control immigration is inherent in the nation’s sovereignty.” According to the ACLU, the U.S. Congress has created a comprehensive system of federal laws that “leaves no room for supplemental state laws.” Additionally, SB-1070 allegedly “imposes burdens and penalties on legal residents not authorized by and contrary to federal law and unilaterally imposes burdens on the federal government’s resources and processes.” Furthermore, federal law does not mandate that local police enforce immigration law, SB-1070 does.
  • Equal Protection and Due Process Clause, Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment to the U.S. Constitution provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” SB-1070 does not provide any criteria that police should use in determining “reasonable suspicion” that someone is undocumented. In a separate document, the ACLU notes, “apart from appearance, it’s hard to imagine any way a police officer could suspect that someone was not in the country legally.” Despite the fact that the law bans racial profiling, it seems inevitable that certain populations will be asked for documents more often than others simply based on the way they look. Under SB-1070, police officers are also authorized to detain and transfer individuals without appropriate due process procedures — based merely on a belief that they have violated federal civil immigration laws, when state and local officers are not even competent to make such a determination.
  • First Amendment of the United States Constitution. The ACLU believes that the First Amendment protects a person’s freedom of speech and expressive activity. In this sense, both Section 2 and Section 5 of SB-1070 place unconstitutional restrictions on a person’s rights. Section 2 “impermissibly vests” in police officers “unbridled discretion” in establishing “reasonable suspicion” that someone is undocumented. That means that a person’s “gestures, language, accent, clothing, English-word selection, failure to communicate in English, and/or other expressive conduct” could be restrained based on a fear of being being stopped, questioned, detained, arrested, and/or jailed. Section 5, which bans day laborers from being hired or seeking work, further prohibits the expression of availability to work in any “public place.”
  • Fourth Amendment of the United States Constitution. The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures.” Meanwhile, SB-1070 requires that police officers conduct unreasonable and warrantless searches and seizures of individuals without probable cause that they have committed crimes. In other words, a naturalized U.S. citizen with a thick accent who was pulled over for speeding could have his car searched and possessions seized simply because he rushed out the door and forgot his wallet.

andreaThe ACLU also claims that SB-1070 contradicts the Privileges and Immunities Clause of the U.S. Constitution which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” another section of United States Code which guarantees that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State,” and Arizona’s own state Constitution which holds that “No person shall be disturbed in private affairs…without authority of law.”

Andrea Christina Nill

Crossposted with permission from the Wonk Room.


  1. Clara says

    Yes, nothing like having a country take all the resources out of a neighboring nation without helping it develop and then blaming the people for trying to find a better life- for the last hundred years! Mexico has minerals, lumber, farming, tourism, a seafood industry…but it’s own people can’t stand to benefit from these, other than farming. Educate yourself, find an immigrant family, get to know them and ask them about the level of poverty in their home country…kind of why the peasant people from Russia, Poland, Rumania, etc, etc, came to this country some time ago?

    • SK says

      Clara, are you kidding? Do you have any idea how much American money goes to help Mexico? Billions!

      BTW, this “country” isn’t taking resources. It’s a few rich people in both countries ripping off poor and middle class Mexicans and Americans. Thanks to our Democratic President Bill Clinton and our corporatist President Barack Obama, we have NAFTA combined with lax federal enforcement of immigration law. The rich in Mexico get richer, the poor get poorer, and our middle class gets stuck paying the bill for all the problems caused by illegal immigration.

      Jeez, comments like yours reminds me of all the people who go around saying white people are the bad guys, as if skin color is what defines good groups and bad groups. No one is blaming anyone for trying to make their lives better. But illegal aliens from Mexico should not be given preference over people from ALL OTHER nationalities and ethnicities. Nor should they be given preference over poor Mexicans who are waiting to come here legally.

      If you care about poor Mexicans, go help some of the starving kids in Mexico whose parents haven’t snuck across the border to this country.

  2. hwood007 says

    I am with Rick on this one. Winslow takes every chance to tell us about his idea to make two countries out of Mexico and US. He does not solve the multiple problems with any real answers.

  3. says

    A resolution will be voted on at the California League of United Latin American Citizens (LULAC) demanding that President Obama of the USA and President Calderon of USM invoke the provisions of Article XXI of the Treaty of Guadalupe Hidalgo to start a bilateral commission to deal with immigration, the violations of Mexican rights under the Treaty itself as well as the International Covenant on Civil and Political Rights and the Vienna Convention on Consular Relations.

    The resolution also proposes that if a bilateral commission cannot reach agreement, any issue not resolved should be arbitrated by a neutral friendly nation, per the Treaty’s provisions.

    This resolution ups the ante of the political game for the racist regime in Arizona: the process, which is the Treaty’s mechanism for resolving problems between the USA and USM, effectively puts the legitimacy of the border itself at-issue. The USA has NEVER fully complied with the Treaty, so why should Mexico insist on getting its land back?

  4. says

    It’s worth testing the constitutionality of Arizona’s papers please law since many other states will no doubt follow suit, but don’t be surprised if it is found to be constitutional. But even if it is struck down, that does nothing to solve the real problem in the U.S.-Mexico equation, the incurably corrupt irredeemable Mexican govt. that fosters poverty, injustice and crime and drives Mexicans to cross the border endlessly while making sweetheart deals with the U.S. establishment to stay out of the spotlight. Any real solution will start with dissolving it and incorporating all of Mexico into the U.S. as fledgling new states with full citizenship for all. Where are these organizations on that issue? Study the bipartisan Megamerge Dissolution Solution that shows how it can be done at


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