This week, the US Supreme Court will hear oral arguments in Arizona v. United States, testing the constitutionality of the well-known Arizona law, SB 1070 [PDF], which obligates all Arizona police officers to check the immigration status when they have "reasonable suspicion." In legal terms, the case questions the ability of US states to take action in the context of immigration a subject always viewed as the domain of the federal government before now. The Supreme Court will answer whether the federal law on immigration "preempts" a state from regulating immigration. But in reality, the case is about something else: whether state law in the US can be used to force police to act on the basis of racial or ethnic appearance.
We should begin with a clear understanding of the goal of the Arizona law, which is not to assure compliance with the federal immigration law. Rather, it is to intimidate and cause fear among Latino people. The idea is to use this fear to terrify and to disturb the Latino population enough that they leave Arizona. This is what the leading Republican candidate for president this year euphemistically called "self-deportation." The drafters of the law were much more blunt. What they wanted was stated in the law itself: "attrition through enforcement." In other words, by enforcing, or threatening to enforce, the provision of the Arizona law, they hoped to push out people they do not want.
The statute itself shows how they planned to do this. The law says that whenever "reasonable suspicion exists that the person [police have encountered] is an alien who is unlawfully present in the United States, a reasonable attempt SHALL be made, when practicable, to determine the immigration status of the person" (emphasis mine). The law states that only a very limited number of official documents (such as an Arizona drivers license, which only US citizens can obtain) will serve as sufficient proof that the person is in the US legally. Without one of these documents, the officer detains the person, which usually results in deportation.
Undocumented immigrants from Mexico and Central America who were living in Arizona understood immediately that any short drive to work or to the store that ended in a traffic stop could lead to deportation, the tearing apart of a family and other dire consequences. The fear that the drafters of the law sought to instill was present immediately.
When the legislation passed, opponents immediately raised the specter of racial and ethnic profiling: law enforcement would use the laws to target people who "looked Latino." Police use of the very low standard of "reasonable suspicion," they said, would inevitably result in police selecting people based on Latino appearance. The criticism must have struck a nerve, because within one week, the legislature passed another law, mandating that there be no racial profiling in enforcement of SB 1070. The governor also ordered that in-service training be created post haste for all law enforcement officers in Arizona that would tell them how to enforce the law and instruct them to avoid profiling. According to proponents of SB 1070, this meant the problem was solved.
Of course, the problem remains. Even as the Supreme Court tries to untangle the thorny problem of whether federal law preempts state law, racial profiling will occur under the law. Even the best-intentioned police officers, who want to avoid profiling, will have no choice to engage in the practice no matter how hard they try. Here is why.
First, note the complexity of US immigration law. One court has famously compared immigration law to the labyrinth of King Minos for the way that even trained lawyers lose their way in it. Immigration law is so complicated that the national government has a special police force, the Bureau of Immigration and Customs Enforcement, which only enforces immigration law. State and local police have almost never enforced immigration law in the past, and they receive no training in its many complications and requirements. To believe that local police might suddenly have the ability to enforce immigration law with competence, based on little more than an executive order and a few hours of training, brings immigration enforcement into the realm of magical thinking.
Second, and more important, is the nature of immigration law itself, and how a person might become an "illegal" alien under the law. Standard criminal laws that local police enforce every day involve prohibited actions: killing, stealing, assaulting or robbing, for example. Immigration law governs who can be present in the US and under what circumstances. But unless police actually observe an illegal entry into the country, there is no conduct associated with immigration violations. Rather, violating immigration law is a status. And such a status is a matter not of conduct, but of the relationship of a particular person to the immigration law. If the police do not directly observe an illegal border crossing (and such illegal entries are not seen by any officer in the vast majority of cases), there is no action of the type that raises a reasonable suspicion in the mind of the police officer.
For example, a person might enter the country on a visa that allows her to stay for a definite term, but then overstay the visa. She is then in the country illegally. In such a case, she would not act any different than she did before her status changed. Nevertheless, her relationship to the immigration law their status has changed.
Whatever the Supreme Court decides on the issue of preemption, what the Arizona law does is put police officers in the untenable position of having to judge "reasonable suspicion" where there is no criminal action. They are told that they must enforce immigration law, for which they are ill prepared, and for which no conduct clues exist. Officers will be forced into relying on the only clues they can see or hear: Latino appearance and Spanish accent. This will, of course, have exactly the effect that the drafters of the law want: it will cause fear among those of Latino heritage, whether they are legal or not, and those people will leave Arizona. Every indication is that this began happening right after the law passed, and has continued since.
The Supreme Court's decision in Arizona v. United States will come before the end of June, and it will set an important standard on federal preemption of state law for years to come. It will also speak directly to the power of states over immigration law. Whatever the decision is, it will not change the clear message sent by Arizona and other states that have followed its example, such as Alabama and South Carolina. Those states have declared that undocumented Latinos are not welcome, and that they intend to make life hard for all Latinos as a result. They've already won. And these laws will be a black mark in the history of these states when we look back years from now.
David Harris is a Professor of Law and the Associate Dean of Research at the University of Pittsburgh School of Law. Harris studies, writes and teaches about police behavior and regulation, law enforcement and national security issues and the law. He is the leading national authority on racial profiling, and the author of books such as Profiles In Injustice: Why Racial Profiling Cannot Work and Good Cops: The Case for Preventive Policing.
Suggested citation: David Harris, SB 1070 and Racial Profiling in the Supreme Court, JURIST - Forum, Apr. 24, 2012, http://jurist.org/forum/2012/04/david-harris-immigration.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org