Immigration, Racism, and the Supreme Court

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By Marjorie Cohn

The issue of immigration has been tossed about like a political
football for some time. Democrats argue that migrants who have spent
many years in the United States should be permitted to apply for
lawful status. Republicans criticize these proposals as “amnesty.” But
Congress has been unable to agree on comprehensive immigration reform.

Three and one-half years into his term, President Obama announced on
June 15 a policy to halt deportations for many undocumented immigrants
who came to the United States as children. They must be under age 30,
have come to the United States when they were under age 16, have lived
in the U.S. for at least five years, be either an honorably discharged
veteran or a high school graduate, and have suffered no felony or
“significant” misdemeanor convictions.

Ten days after Obama revealed his new program, the Supreme Court
issued its long-awaited decision on Arizona’s SB 1070. Arizona had
enacted a repressive law aimed at “attrition [of undocumented
immigrants] through enforcement.” Five other states followed suit and
waited as the high court considered the constitutionality of Arizona’s

In a victory for those who support a humane immigration policy, the
Court overturned three sections of SB 1070: Arizona cannot criminalize
unlawful presence in the United States, or working without papers; and
the decision to arrest someone for unlawful presence in the U.S. is
solely a federal issue.  The Court made clear that the enforcement of
immigration law is reserved to the federal government.

But unfortunately, the Court unanimously upheld the most controversial
provision of SB 1070, at least for the time being. Section 2(b)
requires state officers to determine the immigration status of anyone
they stop, detain or arrest if they have “reasonable suspicion” the
person is an undocumented immigrant. Although the Court didn’t address
racial profiling in its opinion, how can this statute possibly be
enforced without considering skin color, language and clothing?

Section 2(b) says that Arizona officers “may not solely consider race,
color or national origin” in the enforcement of this section. But 2(b)
effectively requires the consideration of race, color and national
origin because it is unfathomable how a law enforcement official could
avoid considering those factors in deciding whom to investigate under
the new law. Even the most well-meaning officer cannot possibly
determine whether an individual may be undocumented without making
judgments based on apparent race, color and national origin. As Tucson
Police Chief Roberto A. Villasenor noted, “It says you can’t use race
and ethnicity.  If you’re not paying attention to race and ethnicity,
what other elements are there? . . . If it’s 95 percent based on race
and ethnicity, what’s the other 5 percent? No one knows.”

The Supreme Court’s decision was apparently a compromise, leaving open
the possibility of additional constitutional challenges.  A majority
of the Court was not prepared to rule at this point that section 2(b)
will interfere with federal immigration enforcement. Future lawsuits
will argue that 2(b) in practice is preempted by the federal
government’s exclusive jurisdiction over immigration, and that it
invariably leads to racial profiling which violates the Due Process
and Equal Protection Clauses of the Constitution.

One justice who refused to compromise with his fellow justices jumped
inappropriately into the political battle in his dissenting opinion.
Antonin Scalia personally attacked Obama’s new policy, writing:

“The president said at a news conference that the new program
is ‘the right thing to do’ in light of Congress’ failure to pass the
administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona
may not think so. But to say, as the court does, that Arizona contradicts
federal law by enforcing application of the Immigration Act that the
president declines to enforce boggles the mind.”

Aside from the impropriety of this cheap shot – which led one
Washington Post columnist to call for Scalia’s resignation – the
justice is wrong about Obama refusing to enforce the immigration law.
There have been more deportations during the Obama presidency than in
any other administration.

But to its credit, Immigration and Customs Enforcement (ICE) has
directed its officials to use particular care in considering the cases
of veterans, members of the armed forces, long-time lawful permanent
residents, minors and elderly individuals, those present in the United
States since childhood, pregnant or nursing women, victims of domestic
violence and trafficking, individuals who suffer from a serious mental
or physical disability, and those with serious health concerns.

After the Court issued its opinion, the Department of Homeland
Security (DHS) said it will send a directive to federal agents in Arizona that they
must continue to enforce the immigration law consistent with the
administration’s priorities, and should not initiate deportation of
those who have not committed serious crimes or are not repeat

DHS also announced it was suspending 287g joint agreements in Arizona.
Under these pacts, the federal government had deputized state and
local law enforcement officials to detain undocumented immigrants. The
program had led to serious civil rights abuses.

Several civil rights and immigrants rights organizations have signed a
letter to Janet Napolitano, Secretary of Homeland Security, urging her
to terminate the 287g agreements in Alabama, Georgia, Indiana, South
Carolina and Utah, the five states that have enacted laws like SB
1070. The letter also requests that DHS collect data to determine
whether state and local police in all six states (including Arizona)
are engaged in racial profiling and illegal detentions. This data
could be helpful for future lawsuits.

In its opinion, the Court made clear that Arizona police who request
an immigration status check from the federal authorities may not
extend a detention longer than would normally occur merely because
they have not received a response from the federal authorities.

Although the Court struck down three provisions of SB 1070, section
2(b) remains on the books. Instead of gratitude for the back-breaking
work migrant laborers contribute to our society, there is an
increasingly virulent strain of racism that leads to the targeting of
non-citizens. Republican lawmakers are joining together to oppose
federal immigration reform, opting instead for a “states rights”
approach where each state is free to enact its own racist law.

There is a hopeful sign in California, however, where the legislature
recently approved a bill that prevents state police officers from
turning over a detained person to federal immigration authorities
unless the detainee has been convicted of a felony.

Migrants, no less than U.S. citizens, are entitled to dignity,
respect, and human rights. Let us join the voices of compassion and
oppose the mean-spirited actions that aim to legalize racial profiling
and scapegoat immigrants. Laws like SB 1070 demean us all.