SCOTUS Arizona Immigration Law Decision: Who Wins? (Pt. 1)

The Supreme Court, Racial Profiling, and Brewer's Hobbled Law

By Lisa Sharon Harper, CP Guest Contributor Monday, July 02, 2012

The Christian Post is pleased to introduce "The Iron Room," a forum featuring analysis from an exciting new panel of CP commentators on areas where the Christian faith and public policy intersect. The name of the new CP political forum is inspired by Proverbs 27:17: "As iron sharpens iron, so one man sharpens another."

Our second installment covers the U.S. Supreme Court's recent decision on Arizona's controversial immigration law. This is the first of a two-part series.

Last week, the United States Supreme Court struck down three of four key provisions in Arizona's attrition through enforcement law, SB1070. This is a major win for advocates of fair and just immigration reform.

The first three SB1070 provisions 1) made it a misdemeanor crime if immigrants did not carry documentation proving their legal status at all times, 2) criminalized immigrants' searches for employment if they could not prove legal status, and 3) compelled officers to arrest and detain anyone they suspected of unauthorized status. In 2011, 23 states introduced copycat legislation aimed at the attrition of undocumented immigrants through this legalized harassment by local and state law enforcement agencies. By nixing SB1070's first three provisions, the court gutted the Arizona law of its heart and made it clear that the federal government maintains sole constitutional jurisdiction over U.S. Immigration policy. States do not have the right to pass laws that contradict, obstruct, or compete with federal immigration policy.

But the court left the fourth provision untouched…for now.

The fourth provision, known as section 2(B), compels police to check immigration status during unrelated arrests or detentions, if there is "reasonable suspicion" that the person is an unauthorized immigrant. The Court declined to judge on this provision because its constitutionality has not yet been tested by the real life factors of implementation. The buzz is that section 2(B) will likely find its way back before the Supreme Court and will buckle under the weight of constitutional scrutiny once enforced. Why? Because "reasonable suspicion" is an open invitation for law enforcement officers to practice racial, ethnic, and religious profiling.

On April 17, 2012, I sat in Dirksen Senate Office Building Room 226 where the Senate Judiciary Committee was holding its first hearing on racial profiling since before the attacks of September 11, 2001. In the wake of the Trayvon Martin case, multiple elected officials, police chiefs, professors, and legal experts testified. As if from inside an echo chamber, one expert after another reinforced lived experience with proven statistical data: Not only does racial, ethnic, and religious profiling violate the civil rights of U.S. citizens, but this kind of profiling also makes law enforcement less (not more) effective.

David Harris is a leading expert on racial profiling and serves as the Professor and Associate Dean of Research at the University of Pittsburgh School of Law. Harris told the panel that racial, ethnic, and religious profiling does the opposite of what's needed to effectively catch bad guys. More bad guys are caught through careful observation of behaviors-things people do, than observations of physical, cultural, or religious characteristics-markers of who people are. And, in fact, when race [ethnicity or religion] is introduced into the mix of things that law enforcement officers observe, Harris explained, "what happens is the observation of behavior becomes measurably less accurate."

Anthony Romero, executive director of the American Civil Liberties Union (ACLU) added: "Racial profiling is not only ineffective: It is also unconstitutional and violates basic norms of human rights, both at home and abroad."

So, I ask Arizona Gov. Jan Brewer, who stood and declared the Supreme Court's ruling a unanimous vindication of her unjust law: "How will section 2(B) stand the test of constitutional law? Of what observed behavior will your officers take note? What behavior could possibly cause reasonable suspicion of unauthorized status during a traffic stop?"

No. Brewer's law had four legs. Now it has one-a lame one. The Supreme Court's ruling was not a vindication of Brewer, rather it issued a death sentence for an unjust law. The law is not dead yet, but it may as well be a dead man walking.