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Why Did the Obama Administration Refuse to Make a Civil Rights Challenge to SB1070?

The Missing Racial Profiling Argument in the Arizona Case

by JUSTIN FELDMAN

CHIEF JUSTICE ROBERTS: 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 racial or ethnic profiling, does it? Saw none of that in your brief.

GENERAL VERRILLI: That’s correct. Okay. So this is –

CHIEF JUSTICE ROBERTS: not a case about ethnic profiling.

GENERAL VERRILLI: We’re not making any allegation about racial or ethnic profiling in the case.

- – Transcript from Arizona vs. United States, 2012 US Supreme Court Case

It was nearly a month ago when the US Supreme Court issued its opinion in the case of Arizona vs. United States. In the decision, the Court ruled that most of Arizona’s SB1070 was unconstitutional because the enforcement of immigration law is a federal power, not a state power.

In the wake of the SB1070 decision, most of the discussion in the immigrant rights community has revolved around Section (2)b of the law, which the media often refers to as the “show me your papers” provision. Section (2)b, the only section in question that the court let stand, requires Arizona police officers to check the immigration status of anyone they stop, detain, or arrest in their normal course of duty.

Naturally, many supporters of immigrant rights are incensed that the Supreme Court would leave 2(b) in place. But I would argue that the Supreme Court actually made a reasonable decision. Asserting that 2(b) is preempted by federal law is a fairly weak argument. Although it would have greatly strengthened its case against 2(b), the Obama administration explicitly excluded concerns about racial profiling from their lawsuit.  It is a wonder that no one in the advocacy world has made much of this exclusion, but – then again – these people have a tendency to act in mysterious ways during an election season.

This, the ACLU, MALDEF, and National Immigration Law Center filed a lawsuit of their own, challenging 2(b) on civil rights grounds. But why couldn’t the Obama administration simply have included this legal challenge in its case? Maybe it was some brilliant legal strategy – wait until the empirical data on racial profiling piles up before building an irrefutable case. Or let advocacy groups like the ACLU to prove their worth by allowing them to deliver the final blow.

But these are unlikely scenarios. The most probable explanation is that a civil rights challenge would have undermined the Obama administration’s entire immigration enforcement strategy, which relies heavily on state and local police to verify people’s immigration status.

Since 2005, the process of capturing deportable immigrants has shifted away from worksite raids and into the dragnet of state and local police forces. Increasingly, the feds have police do exactly what Section 2(b) has police do – verify the immigration status of people they come across during their course of duty and report that information to ICE. In 2005, ICE started a program called 287(g), which allowed police officers in participating jurisdictions to become deputized as ICE agents after undergoing a short training. In 2006, ICE started the Secure Communities program, which requires police to send them fingerprint scans for anyone they arrest in order to verify people’s immigration status.

While 287(g) has not grown significantly under the Obama administration, Obama’s DHS has transformed Secure Communities from a modestly sized program to one that covers 97% of police departments in the United States. Obama’s DHS has said that participation in the program is mandatory and that there will be 100% coverage by 2013. It looks like they are ahead of schedule.

The massive expansion of Secure Communities has taken place with absolutely no analysis of the program’s effects on police practices regarding racial profiling. It turns out that DHS wrote up procedures to monitor every jurisdiction participating in Secure Communities. There is a statistical formula that is supposed to inform DHS if police are taking in a disproportionate number of immigrants and charging them with minor crimes as an excuse to scan their fingerprints.

When DHS announced that it was “restricting” the Maricopa County Sheriff’s Office from access to Secure Communities, I wondered how Sheriff Joe scored on the statistical test. So I filed a request under the Freedom of Information Act in December of 2011. On February 27, 2012 the documents I requested came in the mail. The results: nothing. I received just a few pages outlining the statistical monitoring procedures, all of which I had already seen on the DHS website. This meant that DHS ran Secure Communities for five years without looking for evidence of racial profiling. Seven months after announcing they would look for such evidence, they hadn’t, even while the program was rapidly expanding.

The criminal justice system may very well be the most unjust institution in the United States. The prison population quintupled since 1970 despite no increase in crime rates. A large majority of the people in prison, on probation, on parole, or “stopped and frisked” by police have black or brown skin. Under Bush, the criminal justice system flirted with the immigration system. Under Obama, the two are having a full-on affair. Their perverse encounter has absolutely disastrous effects, seeding fear within immigrant communities, deterring victims of crimes from coming forward, and further ingraining the myth that immigrants and people of color are criminals. The policy hasn’t even achieved ICE’s stated goal of focusing resources on deporting immigrants with criminal records.

While having SB1070’s Section 2(b) struck down on civil rights grounds would be an important step forward, the results would be even more profound if the case also created a legal precedent that changed policy at the federal level, breaking off the affair between police departments and immigration enforcement once and for all.

Justin Feldman can be reached at:  altermundialism@gmail.com.

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