Yesterday, the Supreme Court rejected three elements of Jan Brewer’s Arizona immigration law. The decision pointed out that the state usurped power properly belonging to the federal government while leaving the racial profiling portion of the law intact.
That seems backwards.
The law is a concern to many as it allows Hispanic citizens to be stopped if they look suspiciously like they are illegal. It smells like racial profiling. It implies racial profiling.
So the Court, essentially left racial profiling on the table, simply saying that only the federal government could engage in it. It feels like a double-loss. Hispanics weren’t given any legal assurances and the federal government’s power expanded even though neither party in the federal government is willing to spend capital on immigration.
That’s a disappointing decision any way you look at it. Soon the Court will take another look at the heart of the law. As for the authority of the states? That part of the opinion isn’t going away.
The Court actually left open the question of whether the portion which calls on police who have lawfully detained someone and who the police reasonably suspects is in the country illegally is constitutional. The reason is one of appellate review: equal protection was not raised in this particular litigation. Indeed, it really needed to be, because the surmise that the law amounts to racial profiling requires evidence of implementation.
The portion of the law upheld does not actually allow someone to be stopped “if they look suspiciously like they are illegal.” The law actually stipulates that when an officer has already lawfully detained someone for another crime, and then reasonably suspects the person is an illegal alien, that he has a duty to check his immigration status. The law stipulates that race cannot be used in this calculus, except to the extent permitted by the constitution, which I surmise means that race can be used as a factor along with other circumstances. I would think there are lawful uses for race in this context, because quite obviously if someone is suspected of being an illegal alien from Mexico, that person would have to be Mexican. Of course, it doesn’t work the other way around–simply because someone is Mexican does not make him an illegal immigrant. Thus, why this issue really needs to be properly teed up in an equal protection context, and not a federal preemption context, which is almost laughable.