Political Animal


April 25, 2012 3:17 PM The Supremes Look At S.B. 1070: Not About Profiling!

By Ed Kilgore

Based on the initial oral arguments, it appears unlikely the U.S. Supreme Court will strike down Arizona’s influential S.B. 1070 which enlists state and local law enforcement officers to enforce federal immigration laws. Portions of the law might not survive, however, and it appears the Court might make its validation strictly contingent on assurances the state is making that it will implement the law without usurping the federal government’s power to determine the ultimate treatment of undocumented people arrested under its authority. As is generally the case, Anthony Kennedy could be the swing vote in the decision, though oral arguments indicated that even the Court’s “liberal bloc” is skeptical about the federal government’s case.

But something that Court-watchers need to keep in mind is that a central issue in the court-of-public-opinion debate over Arizona’s laws and those elsewhere it has inspired—the likelihood that law enforcement officers will be encouraged or even forced to engaged in ethnic “profiling” in determining whether to suspect an arrestee’s immigration status—is not before the Court at all.

Here’s Lyle Denniston of SCOTUSBlog on this key point:

Assuming that the Court does allow most, if not all, of S.B. 1070′s four sections to go into effect, that still would not amount to final constitutional clearance for any of the sections. The case reached the Justices in a preliminary state, and there will be ongoing challenges in lower courts when the case is returned to them. Moreover, there are challenges to some of those provisions that the Court did not cosnider on Wednesday, because they are not part of the federal government’s legal assault on the Arizona statute.
The most important of those remaining challenges is the claim that at least two of the four sections give police authority to arrest and detain people just because they look like foreigners — in a phrase, “racial profiling.” While some of the amici in this case did raise that in their briefs, the federal government has studiously avoided the claim. And, the moment that Solicitor General Donald B. Verrilli, Jr., took his place at the lectern to make the U.S. challenge, Chief Justice Roberts sought to make sure that he did not talk about “racial profiling.”
Roberts said: “Before you get into what the case is about, I’d like to clear up at the outset what it’s not about. No part of your argument has to do with rcil or ethnic profiling, does it? I saw none of that in your brief.” Verrilli said that was correct. But the Chief Justice wanted to be sure: “Okay. So this is not a case about ethnic profiling.” The Solicitor General answered: “We’re not making any allegation about racial or ethnic profiling in this case.”

Because the feds are currently going after S.B. 1070 on the constitutonal issue of alleged state usurpation of federal immigration enforcement authority, they won’t “go there” to the profiling issue, at least not at this stage of the legal battle. But it could well come up in a future case, as it will come up in the broader political debate over immigration policy that this Supreme Court review may well reignite.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • T2 on April 25, 2012 3:54 PM:

    the whole point of the AZ law is to promote racial profiling.

  • Lance on April 25, 2012 4:08 PM:

    Just describe this as what it is...

    .. the Federal Government pushing down an unfunded mandate on the states.

  • SadOldVet on April 25, 2012 4:40 PM:

    Is this the same idiot Solitor General who totally screwed up the arguments in the Health Care Act case? Maybe our Constitutional Scholar President should fire this idiot and find someone competent.

  • bob h on April 26, 2012 6:22 AM:

    How will this play with Latins and to what effect in Arizona Presidential contest?

  • pbasch on April 26, 2012 2:23 PM:

    Hm. It is just possible that the administration, through Verelli, is setting things up for the law to stand, so as to permit the AZ GOP to continue to antagonize Latinos.

  • MelanieN on April 26, 2012 6:07 PM:

    Here's an issue I have never seen addressed: EITHER the police are supposed to use racial profiling in deciding who to demand immigration papers from, OR ELSE every human being in the state of Arizona is required to carry identification papers at all times. In effect Arizona has passed a requirement for a "national ID card", an idea that has usually been rebuffed as way too Big-Brother-ish. But how else can we read the law? If indeed they are going to be blind to ethnicity, then every American citizen in Arizona is at risk of detention if they cannot immediately produce paperwork that identifies them as a citizen.

  • Jim Keating on April 26, 2012 6:53 PM:

    It appears that Arizona's case has changed to make it palatable to the court. Item #1 does not allow the arrest
    of questionable persons without the permission of ICE. They
    run the suspect through ICE's data base and if they are
    undocumented ICE can tell local authorities to release
    or hold this is the same as present law. Item 4 "arrest
    without warrant makes no sense because they have no power
    to arrest. This is a non started enabling Arizona to say they won when actually they didn't.