A ruling is expected very soon on challenges to Arizona's SB 1070 anti-illegal immigration law, including a federal government lawsuit that seeks to block the measure on constitutional grounds. Kevin R. Johnson is dean and a professor of public interest law and Chicana/o studies at the University of California Davis School of Law, and an editor of the ImmigrationProf Blog. In opinion pieces published in the Sacramento Bee and the Washington Post, Johnson has written that the Arizona law may not pass constitutional muster - and, surprisingly, that racial profiling is technically legal, according to a long-ago Supreme Court decision. Here's Johnson's take:
M-A: Can SB 1070 hold up in court against the federal preemption challenge?
Johnson: The federal preemption argument, which is the centerpiece of the U.S. government’s lawsuit in United States v. Arizona, is a powerful argument and, in my estimation, has a good likelihood of prevailing. A federal court relied on the preemption argument to strike down California’s Proposition 187, which voters passed overwhelmingly in 1994 and, among other things, would have required public officers to report suspected undocumented immigrants to federal authorities.
M-A: The law was written to closely mirror federal immigration law, and its architects believe that provides a safeguard against preemption. What’s your take on this?
Johnson: Despite the insistence of its supporters, Arizona SB 1070 does not exactly mirror federal law. First, it criminalizes conduct not criminalized by federal law, such as the mere status of being undocumented and the solicitation of work in public places. Second, and perhaps more importantly, SB 1070 delegates enforcement authority for the federal immigration laws to state and local law enforcement officers, which is very narrowly circumscribed by federal law. Put colloquially, the state wants to take the federal law into its own hands and enforce the law as it sees fit, not how the federal government wants to.
M-A: Generally speaking, what would be the biggest concerns if the law is implemented?
Johnson: The most-voiced concern is that state and local law enforcement officers will engage in racial profiling of Latinos in Arizona, citizens and noncitizens alike. The fear is especially real given the claims of civil rights abuses, which the U.S. Department of Justice is currently investigating, by, among others, the Maricopa County Sherriff’s office headed by Joe Arpaio.
M-A: In carrying out the law, is there any way racial profiling can be avoided, or is it inevitable in spite of any guidelines put forth by law enforcement?
Johnson: Racial profiling is a general problem with all law enforcement and the nation still is trying to get a handle on how to eradicate profiling. The enforcement of the immigration laws is particularly prone to excesses and needs to be enforced by a well-trained group of immigration enforcement officers who are closely supervised and whose primary job is enforcing the immigration laws. All of this militates in favor of limiting immigration enforcement to the federal agencies in charge of immigration.
M-A: You’ve written that per a Supreme Court decision, racial profiling is, in fact, not illegal. We’d like to learn more about this. Also, does this mean there is no real legal defense for people who are profiled?
Johnson: Racial profiling is a problem in criminal and immigration law enforcement. There are some legal remedies available but, to this point, have not eliminated the claims of racial profiling in law enforcement by African Americans, Latinos, and other minorities. With respect to immigration enforcement, the concern with racial profiling militates in favor of limiting immigration enforcement to the federal authorities who are trained, have expertise, and are singularly focused on federal immigration enforcement.
Although it may be surprising, the Supreme Court in Brignoni-Ponce v. United States (1975) stated that “Mexican appearance” could be one of many factors relied upon by U.S. immigration enforcement authorities in an immigration stop. This ruling has contributed to claims of racial profiling in the enforcement of the U.S. immigration laws by the U.S. government. The fears of profiling are even greater if such power is given to state and local law enforcement officers, who do not have the same training, experience, and expertise in the U.S. immigration laws that U.S. immigration enforcement officers do (and thus may be more likely to rely on crude racial stereotypes of foreignness).
M-A: In addition to challenging the Arizona law, what other action would you like to see from the federal government in this matter?
Johnson: To truly put an end to the many state and local immigration laws, Congress must enact some kind of meaningful comprehensive immigration reform. Until that is accomplished, we will see more state and local efforts to grapple with immigration.