Immigration, Racism, and the Supreme Court 

By Marjorie Cohn

[Submitted as below to portside, also published on 
Huffington Post 
http://www.huffingtonpost.com/marjorie-cohn/immigration-racism-and-th_b_1674355.html


The issue of immigration has been tossed about like a
political football for some time. Democrats argue that
migrants who have spent many years in the United States
should be permitted to apply for lawful status.
Republicans criticize these proposals as "amnesty." But
Congress has been unable to agree on comprehensive
immigration reform.

Three and one-half years into his term, President Obama
announced on June 15 a policy to halt deportations for
many undocumented immigrants who came to the United
States as children. They must be under age 30, have
come to the United States when they were under age 16,
have lived in the U.S. for at least five years, be
either an honorably discharged veteran or a high school
graduate, and have suffered no felony or "significant"
misdemeanor convictions.

Ten days after Obama revealed his new program, the
Supreme Court issued its long-awaited decision on
Arizona's SB 1070. Arizona had enacted a repressive law
aimed at "attrition [of undocumented immigrants]
through enforcement." Five other states followed suit
and waited as the high court considered the
constitutionality of Arizona's law.

In a victory for those who support a humane immigration
policy, the Court overturned three sections of SB 1070:
Arizona cannot criminalize unlawful presence in the
United States, or working without papers; and the
decision to arrest someone for unlawful presence in the
U.S. is solely a federal issue.  The Court made clear
that the enforcement of immigration law is reserved to
the federal government.

But unfortunately, the Court unanimously upheld the
most controversial provision of SB 1070, at least for
the time being. Section 2(b) requires state officers to
determine the immigration status of anyone they stop,
detain or arrest if they have "reasonable suspicion"
the person is an undocumented immigrant. Although the
Court didn't address racial profiling in its opinion,
how can this statute possibly be enforced without
considering skin color, language and clothing?

Section 2(b) says that Arizona officers "may not solely
consider race, color or national origin" in the
enforcement of this section. But 2(b) effectively
requires the consideration of race, color and national
origin because it is unfathomable how a law enforcement
official could avoid considering those factors in
deciding whom to investigate under the new law. Even
the most well-meaning officer cannot possibly determine
whether an individual may be undocumented without
making judgments based on apparent race, color and
national origin. As Tucson Police Chief Roberto A.
Villasenor noted, "It says you can't use race and
ethnicity.  If you're not paying attention to race and
ethnicity, what other elements are there? . . . If it's
95 percent based on race and ethnicity, what's the
other 5 percent? No one knows."

The Supreme Court's decision was apparently a
compromise, leaving open the possibility of additional
constitutional challenges.  A majority of the Court was
not prepared to rule at this point that section 2(b)
will interfere with federal immigration enforcement.
Future lawsuits will argue that 2(b) in practice is
preempted by the federal government's exclusive
jurisdiction over immigration, and that it invariably
leads to racial profiling which violates the Due
Process and Equal Protection Clauses of the
Constitution.

One justice who refused to compromise with his fellow
justices jumped inappropriately into the political
battle in his dissenting opinion. Antonin Scalia
personally attacked Obama's new policy, writing:

The president said at a news conference that the new
program is "the right thing to do" in light of
Congress' failure to pass the administration's proposed
revision of the Immigration Act. Perhaps it is, though
Arizona may not think so. But to say, as the court
does, that Arizona contradicts federal law by enforcing
application of the Immigration Act that the president
declines to enforce boggles the mind.

Aside from the impropriety of this cheap shot - which
led one Washington Post columnist to call for Scalia's
resignation - the justice is wrong about Obama refusing
to enforce the immigration law. There have been more
deportations during the Obama presidency than in any
other administration.

But to its credit, Immigration and Customs Enforcement
(ICE) has directed its officials to use particular care
in considering the cases of veterans, members of the
armed forces, long-time lawful permanent residents,
minors and elderly individuals, those present in the
United States since childhood, pregnant or nursing
women, victims of domestic violence and trafficking,
individuals who suffer from a serious mental or
physical disability, and those with serious health
concerns.

After the Court issued its opinion, the Department of
Homeland Security (DHS) said it will send a directive
to federal agents in Arizona that they must continue to
enforce the immigration law consistent with the
administration's priorities, and should not initiate
deportation of those who have not committed serious
crimes or are not repeat offenders.

DHS also announced it was suspending 287g joint
agreements in Arizona. Under these pacts, the federal
government had deputized state and local law
enforcement officials to detain undocumented
immigrants. The program had led to serious civil rights
abuses.

Several civil rights and immigrants rights
organizations have signed a letter to Janet Napolitano,
Secretary of Homeland Security, urging her to terminate
the 287g agreements in Alabama, Georgia, Indiana, South
Carolina and Utah, the five states that have enacted
laws like SB 1070. The letter also requests that DHS
collect data to determine whether state and local
police in all six states (including Arizona) are
engaged in racial profiling and illegal detentions.
This data could be helpful for future lawsuits.

In its opinion, the Court made clear that Arizona
police who request an immigration status check from the
federal authorities may not extend a detention longer
than would normally occur merely because they have not
received a response from the federal authorities.

Although the Court struck down three provisions of SB
1070, section 2(b) remains on the books. Instead of
gratitude for the back-breaking work migrant laborers
contribute to our society, there is an increasingly
virulent strain of racism that leads to the targeting
of non-citizens. Republican lawmakers are joining
together to oppose federal immigration reform, opting
instead for a "states rights" approach where each state
is free to enact its own racist law.

There is a hopeful sign in California, however, where
the legislature recently approved a bill that prevents
state police officers from turning over a detained
person to federal immigration authorities unless the
detainee has been convicted of a felony.

Migrants, no less than U.S. citizens, are entitled to
dignity, respect, and human rights. Let us join the
voices of compassion and oppose the mean-spirited
actions that aim to legalize racial profiling and
scapegoat immigrants. Laws like SB 1070 demean us all.

[Marjorie Cohn is a professor of law at Thomas Jefferson
School of Law and past president of the National
Lawyers Guild. Her most recent book is The United
States and Torture: Interrogation, Incarceration, and
Abuse (NYU Press). See www.marjoriecohn.com.]

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