The U.S. Supreme Court (SCOTUS) is expected to rule on Arizona’s controversial anti-immigration law, SB 1070 (2010), sometime in the coming weeks. The Department of Justice (DOJ) filed a lawsuit against Arizona, and other states that enacted similar immigration laws, claiming their state regulations are preempted (i.e., when a particular law is invalid because it contradicts with or displaces federal law) by the federal government. Bills similar to Arizona have been adopted by Alabama, Georgia, Indiana, South Carolina and Utah.
However, Solicitor General Donald Verrilli failed to make an equally important argument that SB 1070 is unconstitutional: executing SB 1070 leads to racial profiling. This violates both the Constitution and human rights. During oral arguments in April, Chief Justice John Roberts greeted Verilli, stating “No part of your argument has to do with racial or ethnic profiling, does it?” Verilli responded in the negative. But when he later attempted to argue a point about Arizona Latinos largely affected by the law, Justice Antonin Scalia interrupted, complaining his assertions sounded too much like racial profiling.
SCOTUS is reviewing whether four specific provisions are precluded by federal law, including:
Section 2(B): Requires law enforcement officers to investigate the immigration status of any individual during traffic stops and other detentions based on “reasonable suspicion” that the individual is unlawfully in the country. This section also mandates detaining individuals who are arrested if state officials cannot verify that they are authorized to reside in the U.S.
Section 6: Authorizes warrantless arrests of persons who local or state police officers have probable cause to believe that such individuals have committed a “removable offense” under federal law.
The DOJ estimates that Arizona is populated with approximately 2 million Latinos, with an estimated 400,000 there illegally. Meanwhile, 60 to 70 percent of deportations or “removals” involve Mexican nationals. In 2011, Latinos in Arizona were stopped for traffic violations four to nine times more often than non-Latinos. The DOJ explains that the vast majority of stops targeted Latinos but resulted in detaining legal American citizens with no justification.
In addition, DOJ has filed a lawsuit against Maricopa County, Arizona, and Sheriff Joseph M. Arpaio for racial profiling of Latinos, and unlawfully discriminating against Latino prisoners with limited English language skills. The DOJ asserts that Latinos in Maricopa are frequently stopped, detained, and arrested on the basis of race, color, or national origin, while Latino prisoners with limited English skills are denied constitutional protections. Thanks to the powers granted by SB 1070, Arpaio disproportionately stopped Latino drivers and raided heavily populated Hispanic communities. These police actions were not the result of increased criminal activity but were instead instigated by citizen complaints that these neighborhoods were populated by undocumented workers.
Clearly, SB 1070's unlawful arrests and detentions violate the Fourth and Ninth Amendments. But thanks to racial profiling by law enforcement, SB 1070's nominal neutrality has evolved into institutionalized racial discrimination. This violates the principle of legal equality. Both the Fourteenth Amendment of the U.S. Constitution and Article 7 of the Universal Declaration of Human Rights declare that all persons are equal before the law and are entitled to equal protection of the law without discrimination. Yet, Verilli somehow failed to emphasize this significant constitutional challenge to SB 1070. Such denial of our institutionally racist immigration system only reinforces the call for change, reemphasizing Congress’ need to regulate aliens precluding state laws, and reform policies concerning immigration raids and border patrol in non-racial terms.
President Barack Obama’s policy announcement on Friday, June 15th, only provides a temporary solution to young immigrants, especially Latino youth. To illustrate, if Arizona law enforcement officials detain an immigrant (under the age of 30 with no criminal background), federal officials will not pursue deportation for at least two years, allowing young immigrants to seek work and student visas. Such permits will allow many of these immigrants to obtain an Arizona driver’s license, indirectly impacting several provisions of SB 1070. President Obama’s effort is a considerable step in the right direction but extremists like Arpaio have already vowed to continue utilizing their disproportionate immigration practice in profiling Latinos.
Verilli erred in demonstrating Arizona’s institutionalized racist and discriminatory practices under SB 1070. Understanding our immigration system from an institutionalized racial perspective is another ground for arguing that our enforcement policies must be revised in an effort to address racism and its constitutional and human rights violations within our system.
American Civil Liberties Union Executive Director, Alessandra Soler Meetze, recent discussed racial profiling under SB 1070 and how it is affecting Arizona:
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