You are more of an expert in the law than myself. My areas of expertise lie in other fields.
That said, I'm not sure how this is unconstitutional. I can see that if misapplied then there are grounds for charges of civil rights abuse.
Nevertheless for the moment let's assume that you are correct. How then can the citizenship of anyone be determined, or is the act of doing so inherently a violation of the Constitution?
If not, how would you craft legislation which protect the rights of citizens, yet allows the detection of those who are not?
Whether or not it is Constitutional will undoubtedly be determined in court. The issue is whether the "reasonable suspicion" standard can be applied to this type of case as it is for Terry stops. Bear in mind that a reasonable suspicion means you can be detained for practically no reason, and we aren't talking here about a narrow situation like airplanes where travel is voluntary and public safety is an issue. We are talking about anywhere, any time, for very little reason. I don't personally like the precedent it sets. So far as detaining people and asking for papers - probable cause, the prevailing standard under the 4th amendment, works just fine.
But really, this has to do with how to orient our approach to the immigration problem. In my opinion, we have to close off the border, then decide how to handle the ones already here. We can provide amnesty, assuming the border is pretty tight, or we can try to remove them. If we are going to remove them, we can raid businesses who hire them, penalize them, shut them down. Or we can go on a witchhunt and have people informing on their neighbors for a bounty, start detaining random Mexicans on the streets, etc. ect. Maybe this is just personal preference, but I do not think this approach will be overly effective, and I just plain do not like it. Not in these United States.
Some other insidious aspects of this law. There is a penalty of up to 6 months in jail for being a legal resident alien but leaving your papers at home one day. This is a worse version of an already objectionable federal statute which provides a 30 day penalty. 6 months in jail for a crime that does not involve either moral turpitude or endangement of public safety? Really? If I go out driving and leave my license at home and get stopped, I get a fix it ticket and pay a $10 processing fee with proof of correction. Odd.
Another problem is that the statute provides Arizona citizens with unlimited rights to sue law enforcement agencies any time the citizen believes the agency is not enforcing this law zealously enough. You think in the State of Arizona there might just be more than a few extraordinarily zealous anti-immigrant types in every jurisdiction with the will to pursue such actions? This element truly reveals the mentality behind the law - all jurisdictions will ultimately have to adher to the standards of the most zealous citizens or risk costly and time consuming litigation to add to the extra workload already imposed by the statute. This does nothing but encourage police to act over-zealously in order to rack up their deportation statistics high enough to avoid legal penalty. And, of course, there is no penalty for the over-zealousness unless there is physical abuse. The fruit of the poisonous tree rule does not apply to immigration enforcement, so there is nothing to encourage honoring the 4th amendment even to the minimal standards set by the law.
- wolf