In arguments before the Supreme Court on Arizona’s SB 1070
immigration law last month, the elephant in the room—racial profiling
and discrimination—made just a short-lived cameo appearance. When the
Justice Department’s top lawyer rose to make the Obama administration’s
case against SB 1070, the Chief Justice immediately demanded
confirmation that “no part of your argument has to do with racial or
ethnic profiling, does it?” A few moments later he reiterated: “OK. So
this is not a case about ethnic profiling.”
The Chief Justice may have dismissed the idea, but racial and ethnic
profiling is exactly what lies at the heart of the debate around SB
1070, a law that targets Arizona’s Latino population for continual
stops, interrogations, and status checks. And while the Obama
administration directly challenged Arizona’s controversial law on
narrower grounds—that it violates federal law and hence is “preempted”
under the Constitution—a discrimination claim could and should have been
evoked as part of that legal principle. Indeed, years of judicial
precedent, going back to the nineteenth century, demonstrates that
ethnic discrimination against immigrants itself interferes with core
principles of federal law.
To be sure, part of the reason why racial profiling is not directly
before the Court is that the administration—importantly—challenged the
law before it could go into effect, in order to stop its
implementation. To do that, the Justice Department mounted a “facial
challenge,” which tries to stop the law when its broader impact, as
measured by empirical evidence, is not yet available.
