Gabriel J. Chin and Kevin R. Johnson in Washington Post, explains why, in a piece titled "Profiling's enabler: High court ruling underpins Arizona immigration law."
...Yet for all the controversy over those concerns, few are talking about the real legal issue underlying the law.Supporters and opponents of S.B. 1070 assume that racial profiling is unconstitutional, largely because many Americans believe that it ought to be. In fact, the U.S. Supreme Court has approved the racial profiling permitted -- indeed encouraged -- by S.B. 1070.
In a 1975 case regarding the Border Patrol's power to stop vehicles near the U.S.-Mexico border and question the occupants about their citizenship and immigration status, United States v. Brignoni-Ponce, the high court ruled that the "likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor." In 1982 the Arizona Supreme Court agreed, ruling in State v. Graciano that "enforcement of immigration laws often involves a relevant consideration of ethnic factors."
It is noteworthy that the authors of the Wapo piece, acknowledge that Arizona law states clearly: a "law enforcement official or agency . . . may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona constitution."
Yet two paragraphs above they claim falsely that SB 1070 encourages racial profiling.
This becomes relevant because although the lawsuit initiated by the Obama administration does not cite racial profiling, (probably for this very reason), Attorney General Eric Holder has "floated" the possibility of filing another lawsuit, citing that very reason.
Should Holder do so, while the topic is uncomfortable to many, any Arizona lawyer defending the law in court would be culpable of legal malpractice not to use precedent already set by the courts already.
Related:
Via CNN, yet another poll finds another state, Pennsylvania this time, where a majority of their voters (52 percent) approving of Arizona's new law and a plurality (47 percent) wanting Pennsylvania to adopt a similar immigration law.
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