Guilty, of failing to prove yourself innocent of a crime

Justices Scalia and Thomas would have supported the Arizona law making it a crime for non-citizens to be without legal immigration papers. Immigration law is complex and filled with opportunities for unpredictable judge discretion. Many undocumented immigrants, once they get before a judge, discover they have a legal basis for being in the U.S. In our innocent-until-proven-guilty legal system, such immigrants have committed no crimes. The Arizona law not only assumed guilty-until-proven-innocent, it actually created the crime of not having previously proven oneself innocent of another crime. Thankfully, such state laws are now clearly unconstitutional.

Rundown of losing legal theories in Arizona v. United States. I found this one particularly poignant — I knew the AZ law went in the highly undesirable direction of a “Papers, please” state, but had not yet thought of it in quite this light.