April 29, 2010
Host: Ted Simons
Democratic Legislative Leaders
- A discussion with House Minority Leader David Lujan and Senate Minority Leader Jorge Luis Garcia.
- David Lujan - House Minority Leader
- Jorge Luis Garcia - Senate Minority Leader
Ted Simons: State legislators are working to wrap up what's turned out to be one tough session. Lawmakers wrestled over a huge state budget deaf and it passed laws that made Arizona a focal point of national attention. Earlier this week we heard from Republican leadership, tonight we hear from the democrats. Here now is house minority leader David Lujan, and senate minority leader Garcia. Good to have you both on "Horizon." Senator, let's get to 1070, start with that. Your thoughts on the bill?
Jorge Luis Garcia: 1070 is a progression of antiimmigrant bills. We've had these for the past six years, and this is just a progression of it. It is nothing but a hate mongering, fear mongering, piece of legislation, and even senator Pearce agrees that it is meant to instill fear among those who are here illegally.
Ted Simons: Your thoughts?
David Lujan: Well, it's not a solution. The people of Arizona are rightfully so frustrated about immigration, want something done. But they want something done about the fact that we're becoming the kidnapping capitol 6 the nation, they want something done about all the drop houses, and this bill is not the solution to that. Not to mention All of the legal problems which I think your next guest will talk about, that are associated with this bill. This bill doesn't go after the criminal syndicates that are bringing violence into our neighborhoods. There's a number of bills that could have been introduced this year that would have addressed those things, democrats introduced a bill that would have made it a class 3 felony to forge documents when you're renting a house to go -- to be used as a drop house. I introduced a bill that would make it a felony to purchase or transfer weapons under false pretenses to drug syndicates. Those bills never got a hearing, but yet those bills would go after the real problems that Arizonans have with the criminal syndicates.
Ted Simons: The governor, on this program and elsewhere, has said that Arizona had to take action. Some action, almost any action, because federal inaction. Obviously the frustration is there. We all hear it. Shouldn't something, something be done to address the problem?
David Lujan: Certainly. And -- but as I said, there's a number of things that we could have done. We could have -- there's a number of bills that were introduced that would go after the criminal syndicates. I think that's where we can focus our attention in Arizona, and that's what's really creating the large amount of crime in our state, are these criminal syndicates. But we also need the federal government. I know we hear it a lot, but we need the federal government to enact immigration reform. We need them to do it. We can't have states enacting legislation on a piece meal bases, because I don't think that's the approach that's going to be effective in addressing our immigration issues.
Ted Simons: So you have this bill, or you don't have this bill, and nothing gets done. Was it better to leave it alone, have nothing done?
Jorge Luis Garcia: Definitely. This is basically going to put one-third of Arizona in a very precarious situation. We will get pulled over by police if we have a burned out taillight, a headline that's blown or a windshield that's cracked, and if the officer suspects us to be here illegally, we -- if we meet the characteristics, they'll ask for our papers.
Ted Simons: Republican lawmakers say, and supporters of this bill say that there needs to be a reasonable attempt to ask for this identification. They say no one is going to cross a street and ask for identification. It has to be now something along the lines of a police contact, a detention, or a stop. Is that unreasonable?
Jorge Luis Garcia: Sheriff Joe Arpaio for the last two years, has gone out into predominantly Hispanic neighborhoods and has stopped people for minor infractions, traffic infractions. Yes, those are illegal acts, agreed, but if we're going to use the resources of the state and of the cities and the sheriffs to enforce traffic laws so we can get immigration law, that's ridiculous.
Ted Simons: Supporters of the bill say, you mentioned illegal crime sinned calls. They're saying this bill addresses law breakers as well, anyone who is here illegally. You can get it as simple as you want, what is it about illegal you don't understand, a bumper sticker mentality, but the argument is, if folks are here illegally, they need to be apprehended. They need to be addressed. Does that not make sense?
David Lujan: Well, I think you need an approach where you can enact state laws to go after the criminal syndicates on the border. That's where the states can be the most effective. But the federal government needs to have the immigration reform that's going to address the people that are coming across the border that are the landscapers, and the ones who are coming here to work. I think that's where we need federal immigration reform. The states, I think we can go enact laws to go after the syndicates. This law makes it more difficult to go after the criminal syndicates. It's going to have a chilling effect on potential witnesses who could be testifying against these criminal syndicates. The people, the individuals who are coming across illegally who would -- who have information about these criminal syndicates who could be witnesses against them, if they think they are going to be identified under this law, it's going to make it much more difficult for law enforcement to utilize them as witnesses in those cases.
Ted Simons: To that point, the governor says they will not be asked for their identification, that is explicitly written into the bill, that on those investigations, they will not be asked to produce papers.
David Lujan: I wonder how many of those people have actually read the bill and know that provision is in there? I don't think many of them have. And so that's the problem. These people haven't -- they don't know that's provisions in the law. And so they're just -- it's going to have a chilling effect on them. They're going to be audit frayed to come forward.
Ted Simons: The governor says this mirrors federal law. The state is only doing exactly what the federal law stipulates, only now the state can enforce whereas the feds don't seem to have any desire to do so. How do you respond?
Jorge Luis Garcia: You know, sheriff Arpaio has or had the 287G agreement. The last time I heard he was under review because he was going after your innocuous traffic violator, OK? Whereas the 287G was designed to go after the violent criminal. Where if you apprehended one, that you would be able to detain them using the resources of INS. What the government has done is basically said to the community that if your city has what's considered a sanction ware policy, people can be sued. The officials will be sued. That's what it does. And that's not what the federal government does.
Ted Simons: How do you -- do you see the same way as fares that idea of suing the city, suing government, suing municipalities for not fully enforcing the law? Your thoughts on that.
David Lujan: Well, I have tremendous respect for our law enforcement in Arizona. We have outstanding law enforcement, that are professionals, and I think they're -- their number one goal is to keep us safe. But this law I think puts them in a very difficult position in that it mandate that they enforce federal immigration laws. And to the extent that they need to be investigating other crimes, I think it can really put a hamper on public safety in terms of, we're saying the federal immigration officers first, and be law enforcement officers second. And if you don't do that, you have the opportunity for people to file litigation against the cities, and I think it's a bad approach to address the issue.
Ted Simons: And yet police unions, police line officers around the state seem to be in support of this bill. Police chiefs, not so much. But the officers, the boots on the ground, seem to like this bill. Is there a disconnect? What's going on here?
David Lujan: Well, I think as I said, I have tremendous respect for our law enforcement. And I think they will implement the law, our law officers don't want to engage in racial profiling. But it comes down to, how is this law written, and what position are we putting our officers who are on the streets? And I think that's the concern that the police chiefs and a lot of the sheriffs around the state see, and they are concerned about the position that their officers are going to be in because of how this law is written.
Ted Simons: Supporters of the bill say we have an illegal immigration problem. Hospitals are overcrowded, schools are overcrowded. Do you agree with that?
Jorge Luis Garcia: Of course not. You know. You know, the issue about the emergency rooms, hospitals being overcrowded, the St. Luke's group back in 2002 came out with their study, immigrants are not the cause of emergency room overcrowding. The issue is schools. I see that more as a fear of senator Pearce losing his neighborhood rather than -- because those individuals who now live in this -- in his own neighborhood, OK, used to live in the trees of the citrus groves that were there in east Mesa and Gilbert.
Ted Simons: So if you don't see an illegal immigration problem, you don't see a problem, then?
Jorge Luis Garcia: Well, I don't see a problem as it's perceived by the Republicans. OK? The problem that has to be addressed is it has to be comprehensive immigration reform at the federal level. And that is such a divisive issue, OK? And it's been proven for the last two years, and I hope that our counterparts in Congress, they have a closer feel to it, they're optimistic something will be done.
Ted Simons: I asked the question, the same question, because if -- there are folks who don't see an illegal immigration problem, which means anything in this bill they'll be against because they don't see it as addressing a problem. Do we have an illegal immigration problem in Arizona?
David Lujan: Certainly our border is broken, and we need to secure the border. I think everybody would agree that we can't get a handle on this until the federal government, again, can control our border. But we need comprehensive immigration reform. And we need to be able to first of all get control of the border, but then we need to deal with the problem who are here, that are undocumented, and then -- but we also need to deal with the fact that we -- the employment situation, and the companies that need labor, are we going to provide a pathway to citizenship? Are we going provide means for people to come here? It's a complex situation, but we need federal immigration reform.
Ted Simons: Very quickly, boycotting Arizona, is that a good idea?
David Lujan: You know, as a legislator, we're going throughout worst economic crisis our state has ever seen. And what I would say is I would encourage people to not do business with those businesses that are encouraging this law. I haven't seen any businesses out there that are doing that, but I think it's the wrong approach when we're going through such difficult economic times.
Ted Simons: Quickly, boycott, good idea?
Jorge Luis Garcia: Good option.
Ted Simons: You like the idea?
Jorge Luis Garcia: It's a good option to enforce some change.
Ted Simons: All right. Gentlemen, thank you so much for joining us.
Immigration Law Legal Issues
- ASU law professor Paul Bender will discuss the legal issues that are expected with Arizona’s tough new immigration law.
- Paul Bender - ASU Law Professor
Ted Simons: Two lawsuits were announced today, challenging Arizona's new immigration law. The national coalition of Latino clergy and Christian leaders filed suit based on grounds that the law usurps federal authority on immigration enforcement and that it may lead to racial profiling. Also today, a Tuscon police officer filed suit saying there is no race neutral criteria or basis to suspect or identify someone who is unlawfully in the United States. In addition, the Mexican-American legal defense and education fund, the ACLU of Arizona, and the national immigration law center announced plans to file suit in the future. Here now to talk about the legal issues regarding Arizona's new immigration law is Arizona state University professor -- law professor, Paul Bender. Nice to see you. I've got some questions for you. Let's start with the general overlook, what do you think of this law?
Paul Bender: What do I think of it, or its constitutionality.
Ted Simons: What you think of it.
Paul Bender: I don't like it.
Ted Simons: What about the constitutionality?
Paul Bender: I think it is probably unconstitutional, some of it, as -- because it's preempted by federal immigration law. The principle section of the bill would make it a crime, does make it a crime, when the bill goes into effect it would make it a crime, a state crime basically to be in this country without your Doc documents with you. If you have the documents, you don't have them with you, it's a crime. If you should have had the document and you don't have them at all, it's a crime. It's already a federal crime. So it adds a state crime. That is the state enforcing federal immigration law. On its own, without any federal control. And I don't think states are allowed to do that. Immigration is a topic that is exclusively for the federal government. Think about it. Suppose the federal government didn't have any immigration laws. Could a state say, nobody from Guatemala can come into the state? Nobody from Canada can come into the state? Of course not. Federal government passes the law, it's up to them to enforce it. They’re the ones who get to decide who to deport, who to detain, what standards to use. And it's not appropriate, I don't think, for -- to have 50 different states with 50 different enforcement policies of federal immigration. Just think of the foreign policy problems that can arise. The federal government is trying to have a good relationship with a country, and a sheriff in Minnesota or something like that arrests a diplomat from that country because he does haven't his documents with him. That's the kind of thing that to me means federal immigration law needs to be federal law.
Ted Simons: So when supporters say it just mirrors the federal law, federal law has now become state law, the feds won't enforce, we will, how do you respond?
Paul Bender: Just mirroring the federal law doesn't make it right. Suppose a state said it was a state crime to file your federal income tax return late. Do you think that would be constitutional? So we'd have the states going around seeing whether you filed your federal return, even though the feds might want to give you an extension, the states could say, sorry, you're not going to do that. We're fighting in Afghanistan, OK? Could a state say, we'll send our troops under our commanders, because you're not doing a good enough job. The answer is no.
Ted Simons: Basically mirroring so that we can enforce better than the feds --
Paul Bender: it's up to the feds to decide how to enforce, when to enforce. That's what the whole homeland security department is about. Now, people in Arizona think the feds aren't doing good enough jobs. Complain to them, try to get the federal law changed. But this is a federal law. And the federal government has the right to decide how it's going to enforce it. The federal government wants the state's help, it can ask for the state's help. And they have done that sometimes. But this bill goes way beyond that. It makes it a freestanding state crime, and so you are authorizing state police to detain somebody, arrest people, put them in jail, even, who the federal government doesn't want to do that to. Under federal law.
Ted Simons: So that you think, the bill is most questionable on those grounds?
Paul Bender: Yeah.
Ted Simons: What about racial profiling?
Paul Bender: Well, the bill certainly, if this system goes into effect, it is libel to be done in an unconstitutional way, in a discriminatory enforcement, like racial profiling. I don't think you can tell from the bill as it stand that that is definitely certainly going to happen. I think the chance it would happen, and past history indicates that might happen. But I would think you would have to wait until the bill goes into effect, and see how it's actually enforced before you could make a really strong racial profiling claim. The preemption claim I was talking about before, I think you can bring before the bill goes into effect.
Ted Simons: And --
Paul Bender: Who the plaintiffs will be or can be is a somewhat complicated question, but I'm sure there are people who withstand the challenge.
Ted Simons: A couple sections of the law got the attention of lawmakers this evening. A law enforcement official or agency may not as it's written, solely consider race, color, or national origin in implementing the requirements of the subsection extent to the extent of the constitution. They took out, or they're thinking of take can out the word "solely." Does that make a difference?
Paul Bender: Yeah, I think that helps. Definitely. Because it would then say they may not consider race, period. At all. In doing. And that's the right answer. They should not consider race. But the fact that a law says that the police can't consider race doesn't guarantee that they're not going to consider race. And that's why I feel that they may be bad racial profiling here, but you need to wait and see how the thing is enforced. And then if it is enforced, I would it this would be a plausible lawsuit. But that's a good step in the bill to take out the "solely."
Ted Simons: But again, it says, and --
Paul Bender: that would be an improvement.
Ted Simons: Makeup not consider race, color, or national origin in implementing. Then what do you consider?
Paul Bender: Well, that's the problem. The first question is, what do you mean, when you say what do you consider? What do you consider when? The bill says that when there's a lawful contact between the police and somebody, then they can if they have a reasonable suspicion, that they're in the country illegally, they can ask for some identification documents. I think what's going on now in the legislature today is that's a very vague phrase. What's a lawful contact? They want to change that, and I'm told they probably will change that to say what a local contact is, you suspect somebody is committing some other crime, not just being in the country illegally. And it's only then that you can ask for identification.
Ted Simons: I think they're looking at stop detention or arrest.
Paul Bender: OK. So let's suppose you stop a car and you see people inside. The bill then says that's a lawful stop. The bill then would say, well, if the police has reasonable suspicion that somebody riding in the car is here illegally, they may ask for identification, if the person has a driver's license the policeman should let them go. If they don't, then what? Does the officer then have probable cause to think that that person is in the country illegally, just because they don't have a driver's license? And the police officer may think they look like the kinds of people who are illegal immigrants? I would think not.
Ted Simons: Then what constitutes reasonable suspicion?
Paul Bender: Reasonable suspicion does not equate justification for arrest. The fact there's reasonable suspicion, the bill says authorizes you to ask for identification. Suppose there's no identification? Then does that give you probable cause to arrest the person? That's what is left unclear in this bill. And I'd like to know how it's going to be enforced to see whether that's unconstitutional. But the problem is that you've set police free to use as you say, how are you going to tell whether somebody is here illegally or not? It's very subjective, it's very impressionistic. There's no way to confine that in any sense of a way. And if you're going to interpret it to say, as the scenario we were just talking about, if somebody who is suspected of being here illegally doesn’t have a driver's license, if the police have the power to arrest them and detain them, while they check on their immigration status, that's a very scary thing for people. Not everybody has his driver's license with him all the time, and people might be afraid to go out in public and things like that. Because even though the bill says you're not supposed to use race or ethnicity in deciding whether you have a reasonable suspicion, as you know and as we're talking, you have to. Even if you say you're not going to do it, you're not going to ask everybody you stop to show their identification. And even then if you ask them for identification, and they don't have it, so what? If you don't have a driver's license with you, that doesn't mean you're illegally in the country. So there's so much subjectivity, there's so much that's vague, that's left to the police discretion, that it's very pregnant with the possibility of using race, even though it says you may not. Because you kind of almost are forced to.
Ted Simons: And the part of the bill where it says, reasonable attempt when practical, to determine the immigration status of the person. Again, you see that as vague.
Paul Bender: It's very vague. I mean, it has to be. How can you design -- even probable cause, which is a much higher standard, how did you define when a policeman has probable cause snits impressionistic things based on experience, and you can't confine it and therefore it is libel to be used in a discriminatory way. And in this situation where there have been discriminatory enforcements in the past so often, to me one of the main reasons why I answered your first question was I don't like the bill, is because it instills fear in people. People with perfectly legal -- that have lived here for generations, may be afraid to go out in public because they'll be hassled because of this. They may be picked up because of this. Fit was necessary to do that, to solve a big problem, I could understand it. But this isn't going to solve the problem that's real. Violence on the border, of drug smuggling, of gang activity. It's not -- they're not going to be deterred by this, they're already committing a crime. So commit one little minor state crime isn't going to stop them.
Ted Simons: We've got about 30 seconds. When the governor and Republican lawmakers say that Hispanic-Americans have nothing to fear because they're here legally and no one is going to cross the street and come get them, you're saying that's not necessarily true.
Paul Bender: They can tell them they have nothing to fear, but that doesn't mean people won't fear. Because the fear is based on the past, and the fear is based on things people say, and I think it's probably going to be a common fear that people will be treated unfairly.
Ted Simons: All right. It's good to see you, thanks for joining us.