Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Arizona’s System to Verify Residency Status
Julia Stronks and Aaron Korthius
July 20, 2012
By Julia Stronks and Aaron Korthius
To what extent should states be allowed to require verification of legal residency? The federal government has the authority under the Constitution to develop immigration law, but the Supreme Court, in its recent decision, has decided that states may pass some of their own laws as long as they do not contradict federal policy. This means that we are only beginning to see the variety of laws that states will enact to complement federal law.
Arizona is the first of many states to pass stringent laws related to undocumented residents. In May 2011, the Supreme Court endorsed Arizona’s requirement that employers use a federal database known as E-Verify to confirm the residency status of people they want to employ. The result is that the undocumented are unable to procure employment in the State of Arizona.
A more controversial aspect of Arizona’s law relates to the work of law enforcement officers. The federal law requires that immigrants have their papers with them at all times. Arizona law requires state law enforcement officers to determine the immigration status of those that are stopped whenever there is “reasonable suspicion” that someone may be an undocumented resident. The Supreme Court upheld this part of the Arizona law, citing a lack of evidence that the law would be implemented improperly.
On the face of it, these laws seem to complement federal policy enforcing immigration law. Christians might even say that these policies are in keeping with the belief that God directs us to obey ruling authorities.
The dilemma, though, arises when policies fail to achieve their objective or fail to treat people with equity. Duke political scientist Peter Feaver is a Christian and a leading scholar in military, defense and national security issues who worked for the White House under the Bush and Clinton administrations. Feaver argues that when policies are structured in such a way that they cannot achieve their goals, they cannot be considered just or moral policies. This is an important consideration to keep in mind when we think about what type of border enforcement techniques we support.
The E-Verify system may have legitimate goals, but it has been shown to have significant internal problems. Several studies have shown that as many as 20 percent of the people identified as “unemployable” under the system are actually legal United States residents. This results in tremendous injustice to the legal residents who get caught in a broken system. The implementation of Arizona’s “reasonable suspicion” policy could be even more fraught with injustice. If reasonable suspicion is improperly based on the color of one’s skin, legal residents (who do not have to carry papers) will also be caught up in a broken system. This policy could result in a two-tiered legal residency system that is based on race. If it turns out that implementation of the law discriminates against lawful residents of Hispanic descent, we may have to conclude that a “reasonable suspicion” policy fails to meet the standards of justice.
We do not yet know how Arizona’s criminal law policy will play out, but the best approach would be to determine residency in a way that impacts everyone equally. In employment law, all employees must fill out federal I-9 and W-9 forms. While similar to E-Verify, these forms have existed since 1986 without the problems exhibited by E-Verify. In criminal law the challenges are more difficult, but the solution probably lies in having police officers check residency status of everyone at the point of arrest rather than checking only “suspicious” people when stopped. Implementing both of these approaches for everyone controls the possibility of racial profiling.
It is reasonable to expect businesses to be accountable for their employment practices, and it is reasonable that police officers would have the responsibility to determine the residency status of those with whom they come into contact. However, the policies we have must apply to everyone and should not impact citizens of Hispanic descent more negatively than they impact the rest of us.
—Julia K. Stronks has a law degree and is a professor of political science at Whitworth University in Spokane, Washington. Aaron Korthuis is about to begin work in Honduras for the Association for a More Just Society; he plans to attend law school in a year.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”