Fox News Analyst Andrew Napolitano Calls Russell Pearce’s Legal Arguments ‘Erroneous’

Earlier this week, I wrote about a new bill — SB-1611 — that was introduced by Arizona state Sen. Russell Pearce (R), sponsor of Arizona’s SB-1070 immigration law. Pearce’s new legislation, which he refers to as “clean-up,” would require parents to provide proof of their childrens’ immigration status when enrolling them in school, require the school to report the families that do not comply to the police, make it illegal for undocumented immigrants to drive a vehicle, and make it a criminal misdemeanor to allow an undocumented person to live in public housing. Pearce, who claims he is fighting an “invasion,” has also stated that “If you’re in the country illegally you don’t have the right to public benefits…It’s called theft.”

It turns out immigrant and civil rights advocates aren’t the only ones claiming that the bill is unconstitutional. Fox News legal analyst, Andrew Napolitano — who is usually counted on to provide a right-wing voice — dismissed Pearce’s efforts entirely:

This is a very very clear cut case, in part because of Senator Pearce’s erroneous statements…that the whole motivation behind this [SB-1611] is his belief that the ought to deny benefits to those who are here illegally. In fact, as you know, the law is the opposite.

Watch it:

For the record, undocumented immigrants do not qualify for most public benefits. However, the purpose of Pearce’s bill isn’t to rearticulate federal law. As Napolitano notes, his bill challenges it.


Undocumented immigrants cannot directly receive federal housing benefits. Yet Pearce’s bill goes a step farther by preventing an entire family living in a public housing unit, even if just one member of the family is undocumented. The provision directly challenges federal authority. The Tucson Housing and Community Development has already announced that it will not comply with SB-1611 if it passes because “federal rules trump state rules.”

Meanwhile, although SB-1611 does not directly deny undocumented children an education, it certainly seeks to create barriers. In Plyler v. Doe, the Supreme Court ruled that such efforts were unconstitutional. Justice William Brennan wrote that the purpose of the Equal Protection Clause is “the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.” The Court further noted, that “[i]t is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”

Finally, driving isn’t a public benefit. However, according to the Fifth Amendment, the government can’t deprive anyone of property without due process. SB-1611 would confiscate and resell the vehicle of any undocumented immigrant caught driving.

The Arizona Senate Appropriations Committee approved the bill in a 7–6 vote. Two of the nine Republicans on the panel broke with their party and voted “no” — which some claim signals an “uncertain future for SB 1611 when it goes to the full Senate.”