The Four Major Legal Challenges The ACLU Has Brought Against Arizona’s Immigration Law

Today, 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:

1. The Supremacy Clause, Article VI, Section 2, of the U.S. ConstitutionThe 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.

2. Equal Protection and Due Process Clause, Fourteenth Amendment of the United States ConstitutionThe 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.


3. First Amendment of the United States ConstitutionThe 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.”

4. Fourth Amendment of the United States ConstitutionThe 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.

The 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.”