Attorney General Eric H. Holder Jr. hinted last weekend that even if Arizona’s statute on cooperative enforcement of federal immigration laws survived a court challenge, his department would find other ways to stop it. “Six months from now, a year from now,” he said, the Justice Department might “look at the impact the law has had … and see whether or not there has been [a] racial-profiling impact. If that was the case, we would have the tools and we would bring suit on that basis.”
Arizona’s new immigration law, SB 1070, states clearly that police “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.” Profiling - by a variety of indicants including race - is a time-honored and generally legal staple of law enforcement. Profiling is based on observable deviations from established patterns of behavior that have a high probability of indicating criminal intent. In other words, it happens when police sense something fishy. A young white man driving slowly through certain quarters of Southeast Washington late at night is likely to be profiled and pulled over; it’s possible his behavior is innocent, but the odds are strong that he is up to no good.
Arizona’s illegal immigration problem stems overwhelmingly from Latin America. It is reasonable under those circumstances for a law enforcement officer to be more suspicious of the citizenship status of a person looking, acting, dressing and speaking like someone from south of the border than someone who shows none of those characteristics. The Arizona Supreme Court has ruled that “enforcement of immigration laws often involves a relevant consideration of ethnic factors” (State v. Graciano, 1982). In 1975, the U.S. Supreme Court in United States v. Brignoni-Ponce allowed for racial profiling combined with other factors to justify stopping vehicles in border areas for purposes of immigration enforcement. Arizona’s law does not even go that far; SB 1070 only applies if a person already has been lawfully detained. In this case, the high court also ruled that inquiring about immigration status was a minimal intrusion on rights when weighed against the legitimate government interest in policing the borders.
Presumably, the Justice Department would try to establish the basis for a civil rights lawsuit by documenting whether the law was only applied against people of Latin American ancestry. Of course, it is possible that Swedes, Ugandans and Cambodians are slipping into the country through Arizona as well as Mexicans, and it’s possible they could be apprehended as well. But Mr. Holder’s contention seems to be that police would be violating the civil rights of already detained illegals simply by assessing their probable national origins based on observable evidence and asking for proof of citizenship. If this is the case, then all federal agents are civil rights violators. By this bizarre standard, no immigration laws are enforceable.
A simple means to avoid such spurious charges from Washington would be for Arizona law enforcement personnel routinely to ask the citizenship status of everyone they detain. This would make it difficult for the Justice Department to claim that only certain groups were being singled out. It also would give Arizona a fighting chance against the onslaught of illegal Swedes, Ugandans and Cambodians coming over the border. Not to mention the Mexicans.