Thursday, July 8, 2010


When the Obama administration filed suit against Arizona over the new immigration law, the thinking in some quarters was that they were doing it because of the obvious racial profiling and civil rights issues that have been the talking points of the bill since its inception. However, the Department of Justice didn’t go that route. Instead, they are suing based on the supremacy clause in the Constitution that makes federal laws and treaties the supreme law of the land; no state or other legal entity can pass a law that supersedes them. Therefore SB 1070 is unconstitutional on the grounds that it is surpassing federal laws concerning immigration and, to a degree, international relations and treaties. Adam Serwer explains why the DOJ went that way as opposed to the civil rights track.

The first is that the DoJ is challenging the law before it has been enforced, which means they’d have to prove that there is no way the law could be enforced in a nondiscriminatory fashion, and they’d have to do it without any real-world examples. “[DoJ lawyers] would have to prove that it was impossible to enforce the statute without discrimination,” Rodriguez said. “You have to show that in no application would this law be constitutional.”

The second issue is that in order to show a violation of the equal protection clause of the 14th Amendment, you’d have to prove an intent to discriminate. The legal threshold for proving intentional racial discrimination is very high.”If you wanted to make an equal protection claim, you’d have to show an intent to discriminate on the basis of race, and that’s exceedingly difficult to show as a legal matter,” Rodriguez says. For one thing, Rodriguez explains, “you’d have to show the intent of the legislators to discriminate” in passing the law. Even with the incendiary rhetoric of Arizona state Sen. Russell Pearce, the provision in the bill nominally prohibiting racial profiling would again make such a challenge a tough sell without concrete examples of discrimination. That said, if the DoJ’s challenge fails, those kinds of lawsuits are likely to follow.

Basically, there’s no point in going after the law on discrimination and civil rights grounds since the law isn’t in effect yet and the DOJ already has enough ammunition with the constitutional issue. In fact, a racial profiling argument would probably make the case harder to win since the law nominally forbids it.

The defenders of the bill say that Arizona had no choice but to pass the bill because, in their words, the federal government wasn’t doing the job of controlling immigration and that crime was rampant in Arizona because of the hordes of criminals pouring over the border. That’s not necessarily true — the Obama administration has increased the number of agents — and crime is actually down in Arizona. Effective enforcement of a law should not be a measure of whether or not the foundation of the law is right or wrong, especially since the Republicans have stated that even if President Obama and the Democrats came up with a revision to the immigration laws, they wouldn’t cooperate with its progress through Congress. After all, what’s more important; immigration policy or election-year politics?

This argument also points out the situational ethics of states’ rights versus the federal laws: it all depends on which side you’re on in a particular issue that determines whether or not you’re in favor of the Supremacy clause. For instance, the argument against the Civil Rights Act of 1964 was that the federal government had no business telling people in Georgia or New Hampshire who could or could not go to public schools. But when Terri Schiavo was lying in a vegetative state in a nursing home in Florida, right-to-lifers were perfectly content to have the United States Congress step in and pass laws superseding the will of the state or her husband.