The Common Good

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

On Monday the United States Supreme Court struck down three of four key provisions in Arizona’s attrition-through-enforcement law, SB 1070. This is a major win for advocates of fair and just immigration reform. 

The first three SB 1070 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 SB 1070’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 judgment 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 I sat in Dirksen Senate Office Building Room 226 where the Senate Judiciary Committee held 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 opened his remarks with a reference to President George W. Bush who promised: “Racial profiling is wrong and we will end it in America.” 

He went on to explain, “That promise remains, as yet, unfulfilled. Instead, we have a continuation of profiling as it existed then, with a new overlapping second wave of profiling, in the wake of the events of September 11, directed mostly at Arab Americans and Muslims. And now we have a third overlapping wave of profiling; this one against undocumented immigrants.”

“The fundamentals are these,” Harris said, “Racial profiling does not work to create greater safety or security. Instead, racial profiling, ethnic profiling, and religious profiling all make our police and security personnel less effective and less accurate in doing their very difficult jobs … In other words, racial [ethnic, and religious] profiling gets us fewer bad guys.”

Harris explained 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.”

Romero also called on Congress to defund Homeland Security programs such as 287(G) and Secure Communities, which both “promote racial profiling by turning state and local law enforcement into immigration agents.” He added, “When police officers, not training in immigration law, are asked to enforce the nation’s immigration laws, they routinely resort to racial stereotypes about who looks or sounds foreign.”

On the same day the Supreme Court announced its ruling, the Obama Administration responded by rescinding the 287(G) program with Arizona law enforcement agencies and suspending the program nationwide. 287(G) is now defunct. 

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. 

Now, all eyes turn toward Congress. 

Our U.S. Immigration system is still broken and something must be done. The Supreme Court has made it clear, that action must come from Congress. Now is the time for comprehensive immigration reform. Now is the time to declare, in concert with the Evangelical Immigration Table and the thousands of people who have signed the Statement of Principles for Immigration Reform, released two weeks ago today: “We call for a bipartisan solution on immigration that:

  • Respects the God-given dignity of every person
  • Protects the unity of the immediate family
  • Respects the rule of law
  • Guarantees secure national borders 
  • Ensures fairness to taxpayers
  • Establishes a path toward legal status and/or citizenship for those who qualify and who wish to become permanent residents”

Let it be so … and let it come quickly.

Lisa Sharon Harper is the Director of Mobilizing at Sojourners. She is also co-author of Left, Right and Christ: Evangelical Faith in Politics and author of Evangelical Does Not Equal Republican ... or Democrat.

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