The Elephant in the Room

April 30, 2012 § Leave a comment

The Supreme Court heard oral arguments from both sides on SB1070 this month on April 25. As I read and got through to the end of the transcripts for the hearing, it became unfortunately clear that the government was simply not going to talk about the elephant in the room – the racial discrimination caused by the law. In particular, Section 2(B) of SB1070 allows police officers to stop individuals and investigate them if there is probable cause to suspect that the individual is an undocumented alien. The question becomes what would arise to give an officer probable cause to conduct the investigation? The person’s appearances seem to be a pretty telling sign. If we were to go one step further, as Solicitor General Verrilli points out during the hearing, about 60 to 70 percent of individuals removed every year have been removed to Mexico, if a person stopped looks Mexican would police officers be encouraged (or even obligated) to conduct an investigation?

At one point during the hearing Chief Justice Roberts stopped to ask Solicitor General Verrilli whether he was going to argue racial or ethnic profiling, to which the government counsel promptly said no. However, later in his arguments the government counsel started talking about racial harassment and how the State of Arizona has already made tens of thousands of stops that results in inquiries to the federal government about someone’s immigration status. General Verrilli adds that this is harassment because in a state with a population of 2 million Latinos and of that only about 400,000 are there unlawfully, the proportion of the stops being made simply doesn’t make sense. This line of arguments was soon cut off by Justice Scalia after pointing out that the government wasn’t arguing racial profiling. I would have loved to hear more of these arguments as to so many in the community that’s where the heart of this entire debate resides.

Unfortunately, the actual debate during the hearing left much to be desired. There’s also predictions that certain enjoined provisions will no longer be barred after the justices reach a decision in June, mainly because the justices spent most of the hearing questioning counsels about Section 2(B) and not much about any of the other three enjoined provisions. Meanwhile, community activists continue to rally against what states like AZ are calling attrition through enforcement with laws like SB1070. It’s an uphill battle but there is no letting up anytime soon.

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