“I think the critics who are claiming the bill will not withstand legal challenge need to read the bill,” said Kris Kobach, a law professor at the University of Missouri-Kansas City. “The bill will withstand any preemptive challenge,” he said, because it reinforces existing federal immigration laws and creates no new immigration crimes.
The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":
For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.
The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.
Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both: "present on any public or private land in this state" and in violation of federal immigration statutes. The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."
The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).
One key issue is whether the law seeks to unconstitutionally pre-empt federal immigration laws. Under the Constitution, federal law is the supreme law of the land and states may not pass laws that seek to overshadow federal statutes.
Professor Kobach said the Arizona law is supportive of federal immigration laws rather than seeking to supplant them. “The bill adheres to the doctrine of concurrent enforcement – the legal principle that preemption will not be found where a state law prohibits conduct that is already prohibited under federal law.”
Arizona was forced into passing the bill due to a failure of the ObamaNation to take action against illegal immigration.
Obama told the Los Angeles Times on Tuesday that he agrees that there are “hundreds of thousands of people coming in” who are “not playing by the rules,” but also that he believes that Arizona has taken the wrong approach to the immigration problem.
The representatives of the people in the state disagree with BO, as does Arizona Gov. Jan Brewer, “We cannot sacrifice our safety to the murderous greed of drug cartels. We cannot stand idly by as drop houses, kidnappings and violence compromise our quality of life. We cannot delay while the destruction happening south of our international border creeps its way north.”