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Arizona knows a thing or two about controversial laws.
As Mississippi and North Carolina deal with the fallout of passing anti-LGBTQ laws, losing out on a Bruce Springsteen show, for example, former Arizona Gov. Jan Brewer reflected on a controversial Arizona immigration law in a March 28 Fox Business interview about President Barack Obama’s plan to admit 100,000 refugees by 2017.
Brewer, who has endorsed Donald Trump for president, was asked about criticism that followed the former governor after she signed the 2010 Arizona measure into law. The interviewer singled out a provision in the law, that gave "law enforcement the right to ask people to see their papers."
"The Arizona law, Senate Bill 1070, simply, just mirrors federal law," Brewer said. "What we need is the federal government to do their job, they need to secure our borders, it’s their job to protect the people."
SB 1070, signed into law by Brewer in April 2010, allows law enforcement officers to question the immigration status of those they suspect are in the country illegally.
It sounded a bit of an odd response by Brewer, given that the U.S. Supreme Court has struck down most of the law since then, which included provisions such as making working in the country illegally a crime.
Does Arizona’s immigration law really mirror federal law? We did not hear back from Brewer’s press office.
SB 1070 a shell of its former self
The law on the books today is a shell of the legislation that passed in 2010. Federal courts struck down every provision of the law with the exception of Section 2(B). That section allows state and local law enforcement to ask for proof of citizenship if that person is detained on a non-immigration related offense and the officer has "reasonable suspicion" that the person is undocumented.
Because that portion of the law was not tossed out by the courts, you can reasonably conclude that it does not conflict with federal immigration law, said Kevin Johnson, dean of the University of California, Davis School of Law.
"It does not really ‘mirror’ federal law, which delegates enforcement power to federal immigration authorities, not state and local law enforcement," Johnson said.
But it’s close.
UC Davis law professor Gabriel "Jack" Chin noted that there is a federal statute that allows the exchange of immigration information between the federal government and state and local police. And a 2005 Supreme Court ruling in Muehler vs. Mena found that local police can ask someone lawfully stopped for their name, date of birth or immigration status.
"It is not inaccurate to say that the state policy of gathering immigration information is consistent with federal law," Chin said. "As the Supreme Court held, it is certainly possible that SB 1070 could be interpreted in ways that violate federal law, but the basic step of gathering information does not."
What about the rest of the law Brewer signed?
The problem with this narrow view of Brewer’s statement is that it ignores the host of other provisions passed by the Legislature that were deemed inconsistent with federal law.
SB 1070 initially included several provisions. According to Northern Arizona University criminology professor Raymond Michalowski, the law originally:
1. Made it a crime of "trespassing" to be undocumented in Arizona;
2. Allowed citizens to sue a local entity if they feel immigration laws are not properly enforced;
3. Made it a crime to stop your car to pick up a day laborer;
4. Made it a crime to transport an undocumented immigrant;
5. Made it a crime to work without papers and allowed state police to arrest individuals without a warrant if they believed the person was in the country illegally.
All of these provisions, in the opinion of the courts, contradicted -- not mirrored -- federal law.
"Federal immigration and criminal law contains none of these provisions," Michalowski said. "So the claim that SB 1070 ‘mirrors’ federal law is a fundamental misrepresentation of what that law sought to do."
Stephen Legomsky, an immigration expert and professor emeritus at Washington University in St. Louis, said Brewer "clearly misspoke."
SB 1070 once made it a state crime, without probation, for people who failed to carry their papers. This is still a misdemeanor at the federal level, but probation is allowed.
As far as making working without papers a crime, Legomsky said Congress made that an "authorization for removal," not a criminal offense.
And police arresting people without a warrant they suspect are undocumented is only permitted under federal law when the person is "likely to escape" before a warrant is issued. It is prohibited otherwise.
Again, all these provisions were stripped, with the exception of police stops.
"The Supreme Court in its decision over SB 1070 indicated that it did not believe that the statute mirrored the federal law, and in fact, even if it did, it felt that it was improper for the state to engage in the activity that they wanted to do under that statute," said Evelyn Cruz, Arizona State University’s Immigration Clinic Director.
Justice Anthony Kennedy’s majority opinion in the SB 1070 case makes this clear:
"Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law," he wrote.
Brewer said, "Senate Bill 1070, simply, just mirrors federal law."
The law on the books today comes close to mirrored federal law. But that’s only because the majority of the law was tossed out by the federal courts because it conflicted with federal law.
It’s an odd thing for Brewer to be bragging about. Brewer’s statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.
Fox Business, "Jan Brewer: It’s outrageous what the president is doing to our country," March 28, 2016
The Washington Post, "Bruce Springsteen cancels North Carolina concert to protest bathroom law," April 8, 2016
The Washington Post, "Obama administration to expand number of refugees admitted to U.S.," Jan. 13, 2016
ABC15, "SB 1070 immigration law update: Activists want new law to curb racial profiling," Sept. 8, 2015
SCOTUSBlog, "Court strikes down much of Arizona immigration law," June 25, 2012
Interview with Northern Arizona University criminology professor Raymond Michalowski, April 11, 2016
Interview with Washington University in St. Louis professor emeritus Stephen Legomsky, April 11-12, 2016
Interview with Arizona State University Immigration Clinic Director Evelyn Cruz, April 11-12, 2016
Interview with University of California, Davis School of Law Dean Kevin Johnson, April 12, 2016
Interview with American Civil Liberties Union of Arizona spokesman Steve Kilar, April 12, 2016
Interview with University of California, Davis law professor Gabriel "Jack" Chin, April 12, 2016
Cornell University Law School, "Muehler vs. Mena," accessed April 12, 2016
U.S. Supreme Court, "Arizona Et Al. v. United States," accessed April 11, 2016
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