- The Washington Times - Monday, June 25, 2012

An irony of the Supreme Court’s ruling Monday on Arizona’s law is that the part about which President Obama and his top advisers most complained is the one part the court upheld.

As Arizona was debating the law, Mr. Obama, Attorney General Eric H. Holder Jr. and other top officials said racial profiling would follow if police were allowed to stop and demand to know the legal status of those they suspected to be in the country illegally.

But that’s the one part of the law the Supreme Court upheld unanimously, saying it will give police a chance to see if they can implement the law properly without violating civil rights.

“There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume [that section] will be construed in a way that creates a conflict with federal law,” Justice Anthony M. Kennedy wrote for the majority.

The law had four chief components. Three sections that set up state criminal penalties for immigration violations were struck down in the 5-3 ruling. Justice Elena Kagan recused herself from the case.

But all eight justices upheld the provision allowing police to check the status of those they had “reasonable suspicion” were in the country illegally, and then report their identity to federal authorities. The federal government could then decide whether it wanted to pick up and deport the illegal immigrants, or let them go.

In 2010, when Arizona Gov. Jan Brewer signed the law, Mr. Obama and Mr. Holder both said they thought that provision would lead to racial profiling.

“Now suddenly if you don’t have your papers and you take your kid out for ice cream and you’re going to be harassed — that’s not the right way to go,” the president said at the time.

Mr. Holder even testified to Congress that he thought it would lead to racial profiling — though he acknowledged he hadn’t actually read the law yet.

But when the Justice Department filed its lawsuit challenging the law, it left out the racial profiling argument, instead focusing entirely on issues of federal versus state power over immigration.

“We’re not making any allegation about racial or ethnic profiling in the case,” Solicitor General Donald B. Verrilli told the court during oral arguments in April.

Immigrant-rights advocates were stunned by the court’s decision.

“This threatens the safety of all Americans and undermines the fundamental relationship between police and the communities they serve,” said Rep. Luis V. Gutierrez, an Illinois Democrat who has emerged as a top voice for legalizing illegal immigrants.

“Experience has shown us that police are highly unlikely to stop an individual with the last name of Kennedy or Roberts on suspicion of not being a legal U.S. citizen, but if you are a Gutierrez or Martinez, watch out,” he said.

Mr. Holder said his lawyers will keep a close eye on how Arizona and other states enforce these kinds of immigration status checks to make sure “law enforcement agencies and others do not implement the law in a manner that has the purpose or effect of discriminating against the Latino or any other community.”

And the Supreme Court left open the chance for further challenges if the law becomes discriminatory. In particular, the justices seemed concerned that immigration checks could unconstitutionally prolong the amount of time an officer detained someone during the status checks.

But the court said it’s possible the law could be implemented fairly.

In a statement Monday, Ms. Brewer said police need to be aware that opponents are watching them.

“Our critics are already preparing new litigation tactics in response to their loss at the Supreme Court, and undoubtedly will allege inequities in the implementation of the law,” she said. “As I said two years ago on the day I signed SB 1070 into law, ‘We cannot give them that chance. We must use this new tool wisely, and fight for our safety with the honor Arizona deserves.’”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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