Monday, April 26, 2010

The Lessons of Immigration Reform in Arizona for the Court

Late last week, Arizona governor Jan Brewer signed into law one of the toughest, if not the toughest, immigration bill in recent memory. The one feature of the new law that has received a great deal of attention requires police officers to stop anyone they reasonably suspect of being an illegal immigrant. Those who fail to produce a driver's license or documentation showing their legal status could be arrested. What this means for brown people in Arizona should be painfully clear. What could it possibly mean to reasonably suspect that a person is illegally in this country, particularly in the Southwest, other than by the color of her skin, her facial features, his surname or accent? This bill is, in a word, "shameful."

Governor Brewer is mindful of these concerns. Yet, she argued while signing SB 1070 into law:
"I will NOT tolerate racial discrimination or racial profiling in Arizona. Because I feel so strongly on this subject, I worked for weeks with legislators to amend SB 1070, to strengthen its civil rights protections. That effort led to new language in the bill, language prohibiting law enforcement officers from “solely considering race, color, or national origin in implementing the requirements of this section."
I do not doubt for a moment the governor's sincerity. But how can the law not lead to racial profiling? In fact, it may be said that the law encourages precisely that, the targeting of people within the state on the basis of race.

Responses to the law have ranged from direct protest to promises of litigation. I think both are important. But the more I think about litigation as an alternative, the more I keep coming back to the upcoming nomination of Justice Stevens' replacement on the Court.

On its face, the law is neutral as to race. The relevant portion reads as follows:

"A law enforcement officer, without warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States."

In a recent post, James Doty argued that "there is a high probability that [this passage] will be struck down before the law goes into effect." He offers two arguments. First, the new law "essentially criminalizes walking while Hispanic;" and second, the law "seems to require that officers demand documentation from suspected aliens based on mere hunches." Doty argues that the "walking while Hispanic" charge is subject to challenge under the Equal Protection Clause, while the demand for documentation is subject to a Fourth Amendment challenge and is, more importantly, "a clear violation of the Constitution."

I agree with much of Doty's arguments, yet part company in one crucial way: there is simply nothing clear about the Constitution and its meaning. Can you not readily imagine a decision by the Roberts Court upholding the constitutionality of SB 1070 on a number of different grounds? That is, we can pretend that the legal challenge over SB 1070 will be determined by constitutional law properly understood, by constitutional precedents that will clearly decide the outcome of the case. But constitutional law and constitutional precedents are not always determinative.

The constitutionality of SB 1070 is likely to hinge on the constitutional vision and alternative realities of the judges who decide the case. This is why Guy correctly pointed to the upcoming nomination battle last week as "an opportunity to present and defend a vision of constitutional decision-making and of judging to the country." Without question, Chief Justice Roberts' umpire-analogy is cute and very appealing. But it presents a dangerous myth.

For the moment, we are focused on the constitutionality of SB 1070. In the near future, the debate will turn to the looming congressional response to Citizens United; and the in the not-so-distant future, the constitutionality of the Voting Rights Act hangs in the balance. It is in these types of battles that contested visions of constitutional law are particularly relevant. We believe otherwise at our peril.

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