By Gabriel J. Chin and Kevin R. Johnson
Tuesday, July 13, 2010; A15
In its challenge to Arizona's controversial immigration law last week, the Justice Department argues that the state law conflicts with federal law, intruding on federal power and ability to regulate immigration. For many Americans, however, the lawsuit is needed because of concerns that Arizona's legislation, S.B. 1070, will lead to police harassment of people, particularly those of color, who cannot prove they are in this country legally. Yet for all the controversy over those concerns, few are talking about the real legal issue underlying the law.
Supporters and opponents of S.B. 1070 assume that racial profiling is unconstitutional, largely because many Americans believe that it ought to be. In fact, the U.S. Supreme Court has approved the racial profiling permitted -- indeed encouraged -- by S.B. 1070.
In a 1975 case regarding the Border Patrol's power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status, United States v. Brignoni-Ponce, the high court ruled that the "likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor." In 1982 the Arizona Supreme Court agreed, ruling in State v. Graciano that "enforcement of immigration laws often involves a relevant consideration of ethnic factors."
Arizona's immigration law states that a "law enforcement official or agency . . . may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution." Although supporters of the law, including Gov. Jan Brewer (R) and other state officials, have said repeatedly that racial profiling is prohibited in its enforcement and that those charged with carrying out the law will be trained to avoid it, the fact that the legislature included this careful exception is significant.
Lawmakers took care to embrace the reliance on race permitted by cases such as Brignoni-Ponce. This choice deserves acknowledgment and discussion, just like that received by the rest of the law.
Brignoni-Ponce has resulted in immigration enforcement that many contend is race-based and in violation of the U.S. Constitution. In case after case, in states including Florida, Iowa and New York, defendants arguing that Border Patrol stops constituted unlawful searches and seizures under the Fourth Amendment have encountered claims by the U.S. government -- including the current administration -- that "Mexican" or "Hispanic" appearance, along with other factors, justified an immigration stop. Border enforcement officers regularly admit in court that "Hispanic appearance" is one reason for an immigration stop.
Racial profiling results from the perceived statistical association of particular races or nationalities with undocumented immigration -- the idea, in other words, that many undocumented immigrants are from Mexico. This rationale ignores the fact that the law generally requires individual suspicion to justify criminal investigation; that a "Mexican appearance" is a vague and ambiguous description and that people from Mexico bear an array of appearances.
We suspect that Brignoni-Ponce and its incorporation into S.B. 1070 have escaped the notice of many Americans because of the ways in which racial sensibilities have evolved since the 1954 ruling in Brown v. Board of Education. Modern American values and most of modern constitutional law are simply inconsistent with the equation of race and suspicion authorized and encouraged by Brignoni-Ponce. Today, being subject to questioning by law enforcement for no other reason than that others of your race, religion or national origin are supposed to commit more of a particular type of crime is nothing short of un-American.
The federal lawsuit raises a number of questions. We think the government's claim of federal preemption is likely to prevail: There is room for one immigration law, not a 50-state patchwork of immigration laws. But the discussion should not stop there. Perhaps that is why last Friday the League of United Latin American Citizens (LULAC) filed another challenge focusing on S.B. 1070's potential for racial profiling. For the Arizona officials who enacted S.B. 1070, the next step is to repeal the part of the law that authorizes racial profiling. As for the legal system as a whole: Brignoni-Ponce has been exceptional and out of the constitutional mainstream since it was decided. The U.S. and Arizona Supreme Courts should reconsider the endorsement of race-based law enforcement, which is contrary to modern notions of equality in America, and conform constitutional law to the principles held dear by most Americans.
Gabriel J. Chin is a professor at the University of Arizona Rogers College of Law. Kevin R. Johnson is dean and a professor of public interest law and Chicana/o studies at the University of California Davis School of Law.