Analysis: Regarding Immigration, Now Comes the Hard Part

By Fawn Johnson

The Supreme Court will one day have to deal with whether the remaining part of Arizona’s immigration law, or a law like it, is discriminatory.

For a messy topic such as immigration, the Supreme Court’s decision this week striking down portions of Arizona’s tough enforcement law was surprisingly tidy. The justices stated plainly that the federal government trumps the states on immigration policy. The last line of Justice Anthony Kennedy’s majority opinion summed up neatly the Court’s nearly wholesale rejection of Arizona’s plea for permission to use its own legal framework to crack down on illegal immigration: “The state may not pursue policies that undermine federal law.”

That was the easy part. The decision drew a simple line between state and federal jurisdictions, leaving in place for now a part of Arizona’s law that allows police to routinely ask about immigration status during traffic pullovers and the like. A much more difficult question looms: Is Arizona’s surviving “show me your papers” provision, along with laws like it in five other states, discriminatory?

Hispanics and civil-rights groups were upset that the Court upheld “show me your papers.” President Obama made a point of echoing their concerns, even though the decision was largely a victory for his administration, which challenged the Arizona law. “No American should ever live under a cloud of suspicion just because of what they look like,” he said after the ruling.

Civil-rights groups have teed up lawsuits in six states, including Arizona, alleging that such laws are discriminatory. (The other states are Alabama, Georgia, Indiana, South Carolina, and Utah.) The complaints say that the laws deliberately target racial minorities, specifically Hispanics. The lower courts are largely agreeing. In five of the six states where the lawsuits are pending, courts have wholly or partially blocked the state laws from going into effect.

It’s a good bet that one of these cases will make its way to the Supreme Court. Determining whether these state immigration laws are simple enforcement mechanisms or sanitized Latino-expulsion programs will be a contentious process.

The Supreme Court deliberately did not examine questions about racial profiling or harassment when it reviewed Arizona’s law. Its decision was based solely on the comparatively dry concept of federal preemption, and the justices decided that Arizona had stepped over the line in several areas. The Court said that the state cannot criminalize work by undocumented laborers or create a state misdemeanor for failing to register as illegal. Local police officers won’t be allowed to arrest without a warrant people they suspect are undocumented.

Yet it’s the “show me your papers” provision that is poised to expose the thorny question of whether police can enforce immigration laws without taking into account the color of a suspected lawbreaker’s skin. The specter of racial profiling isn’t confined to immigration laws, of course. Whether it’s airport screeners looking for terrorists or traffic cops stopping speeders, questions of race loom in the background of many law-enforcement issues. Police officers, for their part, say they cannot ignore a suspect’s race, but that they don’t look at race alone. The courts generally allow this balancing act.

The Supreme Court has said that police officers can use race as one factor in detecting criminals, provided that it is not the only factor and that objective crime trends indicate that a person’s race matters in a particular situation. Such calculations are not simple, and they vary widely depending on the circumstances. How serious is the threat? How closely does the racial identification match the crime? There are no easy answers, no clean dividing line between right and wrong, and no way to establish a set of rules that will work in every circumstance.

To give just one example of how the “Is it fair?” analysis is ever-changing, the U.S. Court of Appeals for the 9th Circuit in 2000 had no problem contradicting the Supreme Court’s 1975 United States v. Brignoni-Poncedecision when it determined that Hispanic origin is an impermissible factor for making traffic stops in Southern California. The 9th Circuit said in United States v. Montero-Camargo that the Supreme Court’s earlier finding that ethnic appearance could be relevant relied on “now outdated demographic information.” Too many Hispanics lived in the region, the Appeals Court said, to make Hispanic appearance a relevant factor in law enforcement.

This is the type of question that will occupy the next round of legal challenges to state immigration laws. The cases will have to grapple with one of the country’s biggest challenges over the next several decades, integrating a growing Hispanic population into a shrinking white one.

Civil-rights activists are ready and waiting. “We have no intention of seeing [‘show me your papers’] go into effect,” said Karen Tumlin of the National Immigration Law Center, a litigating attorney in the Arizona case and the other lawsuits. “The law itself needs to catch up with the way in which racism continues to operate in everyday society” under so-called mutually neutral laws, she said.

One consequence of the states passing immigration laws has been a rise in disturbing stories of fear and intimidation among Hispanics—teenagers stopped for riding bicycles without lights and schoolchildren questioned about whether their parents have papers. Sometimes police screw up. Sometimes they are, in fact, racist. But those stories might not be sufficient to wholly invalidate an enforcement mechanism that relies heavily on the cooperation of mostly well-intentioned police. “We should not just assume that the people who enforce this law are doing it with the intention to discriminate,” said John Malcolm, a senior legal fellow at the conservative Heritage Foundation. “It can be easy to allege, but it should not be easy to prove.”

The debate is certain to escalate and sure to be racially charged. And however the high court eventually rules, the issue will be with us for a while.

This article appears in the Saturday, June 30, 2012 edition of National Journal.

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