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!”
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
the discourse around arizona sb 1070 provides evidence of the law’s crass racism even before the first mexican- or central american-looking person is asked by the police to show evidence of citizenship: whites are excluded totally when speaking about ‘suspected illegals.’ i had two students from scandinavia a couple of semesters ago. they went to mexico and forgot to bring immigration documents. when they got to u.s. immigration, they were frantically looking for a document they could use to document their status. they took out their student id’s and showed them to the border patrolman. according to their testimony, he said, ‘it’s all right. you are white.’ so these attractive blue-eyed, blond students entered u.s. territory illegaly with the bessing of a border patrol officer.
Do you think it would be better in the long run to let the law be enforced for a while in order to provide more damning proof of how bad it is? Right now we just have what bad things might happen and although I am pretty sure that bad things will happen there is not proof. I would personally rather just get rid of SB1070 by any means we can, but I do see that I might be off base on this one.
The white racial frame tells us that white means positive, nothing to worry about, acceptable, no criminal record and none in the future, good reliable citizens, people you want for neighbors and definitely buy Girl Scout Cookies from them. If you’re brown or black this translates into negative, red flag, totally suspect, usually criminal record or about to have one, people you absolutely don’t want to share a backyard fence with, people who you don’t want your kids playing with, people who you’ll do business with but after that, please go away. This is the problem! It’s a mind set that discriminates at every turn, even with a glance or a subtle look. Like the Black Codes, we can’t tolerate this as a nation and even pretend to be a democracy. Sb 1070 is just as insidious as Jim Crow.