It appears the Obama Administration and Justice Department will be challenging Arizona’s immigration law, otherwise known as SB 1070, although no lawsuit has been filed yet.

If recent events are any indication, the forthcoming lawsuit will frame immigration as a national issue that requires a federal, not state, response.  In a recent interview, Secretary of State Hillary Clinton commented, “[Obama] thinks that the federal government should be determining immigration policy.” These comments were further corroborated by President Barack Obama, himself, when he first openly criticized the law. He said, “If we continue to fail to act at a federal level, we will continue to see misguided efforts [like Arizona] opening up around the country.” Further preview of the lawsuit to come was offered by Randal Archibold and Mark Landler of The New York Times. According to them, legal scholars say the Obama Administration and Justice Department have a stronger case if they argue that Arizona intruded upon what ought to be federally regulated.

As these accounts foreshadow, the merits of the pending challenge will likely be on grounds of federal versus states’ rights. At face value, this is certainly good news to those who oppose SB 1070. However, the grounds in which this case will likely be built has complicated implications for racial/ethnic issues. If such a challenge is solely built on the notion that immigration is a federal issue, then it will ignore the proverbial elephant in the room that made this law controversial in the first place: racial profiling.

Under SB 1070, Arizona lawmakers have enabled local police enforcement to approach anyone who they “reasonably suspect” to be of illegal status and verify their citizenship. Furthermore, this law enables local police enforcement to detain anyone they reasonably suspect to be in the U.S. illegally. Because reasonable suspicion remains undefined, this broadens what tactics can be employed to enforce the new law. As critics argue, this not only encourages police to rely upon racial and ethnic markers such as skin tone and language to enforce immigration law, but it gives them legal justification to racially profile.

If the Obama Administration and Justice Department file suit against SB 1070 on grounds of federal versus state authority, they virtually leave racial profiling unchallenged. ¹

This is problematic because racial profiling is discriminatory as it targets individuals on the basis of group assumptions. And these group assumptions often times are faulty generalizations that depend upon stereotypes. All Latina/os or “Latina-looking” people are not illegal migrants, but SB 1070 enables law enforcement to presume such individuals as guilty until proven innocent. Instead of condemning racial profiling, the Obama Administration and Justice Department will likely change the subject and frame this law as an issue of how government authority should be delegated.

A failure to openly contest racial profiling reinforces a central feature of color-blind racism: the minimization of racial discrimination. When people buy into this post-racial fantasyland, as Eduardo Bonilla-Silva contends, they understand racial discrimination as more of a historical fact than a contemporary living nightmare for folks of color. Rather than address mountains of evidence (see Karen Glover and Katheryn Russell-Brown) that detail the persistence – and limits – of racial profiling, it remains unaddressed and thus the racial status quo is maintained. By remaining silent, the Obama Administration and Justice Department implicitly dismiss the enduring presence of such racial discrimination within the criminal justice system.

If the Justice Department wins its forthcoming lawsuit on grounds that immigration is a federal issue, then SB 1070 will have been defeated by technicality. Though this would successfully nullify this racist law, it’s premature to bring out the champagne glasses just yet. Turning your back on a problem does not make that problem go away. The merits of racial profiling must be openly contested for SB 1070 to be genuinely defeated in the name of racial progress. Such a task is cumbersome, but it is necessary if America is to become closer to the ideal that many have dreamed. In the hopeful words of Langston Hughes, let America be the land it could be:

“O, let America be America again

The land that never has been yet

And yet must be

the land where every man is free….

America never was America to me,

And yet I swear this oath—America will be!”

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¹ Though I have critical reservations about this legal strategy due to its racial implications, it may very well prove to be most effective. If the Obama Administration and the Justice Department squarely tackled the unconstitutionality of racial profiling, they run the risk of a conservative U.S. Supreme Court dismissing their claim on grounds of precedent: the 1975 ruling of the United States v. Brignoni-Ponce. For this case, the Court essentially legalized racial profiling by enabling police to use someone’s racial appearance as grounds for stopping and searching motorists. Michelle Alexander points this out in her new book: “In that case the Court concluded that the police could take a person’s Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants.”

Kasey Henricks, Master’s Student, Sociology Department, Loyola University Chicago