The HNBA Speaks Out Against Proposed Legislation In Arizona That Erodes Protections Afforded by the U.S. Constitution

April 21, 2010

Washington, D.C. – The Hispanic National Bar Association, the national voice of the Hispanic legal community, speaks out against proposed legislation in Arizona, as it raises grave constitutional issues.  The Arizona Senate has passed and sent to Arizona Governor Jan Brewer Senate Bill (“SB”) 1070, a bill that seeks to criminalize undocumented immigrants by making it a crime to be in the state without documentation.  Moreover, SB 1070 directs police officers to inquire as to immigration status on a “reasonable suspicion” that an individual is undocumented.

Under the proposed law, an individual is presumed to be in the U.S. legally only if they can provide an officer with an Arizona driver’s license or identification card, a tribal identification card or any federal, state or local government-issued identification.  The bill aims to stop day-labor solicitations by making it illegal to seek work or to hire somebody for work from a road or sidewalk if doing so slows traffic. The bill also includes a trespassing provision.  Individually and collectively, SB 1070 raises grave constitutional issues including: 1) racial profiling, 2) freedom from unreasonable seizures, 3) the imposition of ex post facto laws, 4) lack of due process guarantees, and 5) federal preemption of state laws through the plenary power of Congress.

HNBA National President Román D. Hernández noted, “If enacted, this law will create an impediment to effective police enforcement of major crimes.  Arizona law enforcement officials have themselves highlighted that Hispanics in general and undocumented persons in particular will be less willing to cooperate in providing information to police.  The situation is even more aggravated by virtue of a provision of SB 1070 that encourages individuals to sue agencies who do not enforce this law by providing the promise of court costs and attorneys fees.”

The HNBA has noted that in recent years, local frustrations over the federal government’s failure to resolve our country’s immigration crisis has resulted in dangerous, unjust and discriminatory actions directed toward the Hispanic community.  Municipalities have acted to deny housing and other services to alleged undocumented persons.  Federal courts have ruled, often in favor of the Hispanic litigants, that these type of local ordinances are discriminatory and unlawful, often resulting in exorbitant legal costs particularly to the taxpayers who provide the municipal finances.

According to Hernández, “The HNBA remains committed to the principles of fundamental fairness, due process, and equal justice under the law for all people, regardless of immigration status.  The proposed legislation in Arizona is inconsistent with those principles.  There is a solution to immigration reform that our Congressional leaders are working to devise, but SB 1070 is a short-sighted and likely unconstitutional response to a greater federal issue.”