News Analysis

Pre-emption, Not Profiling, in Challenge to Arizona

Published: July 7, 2010 - New York Times

PHOENIX — In the public outcry that followed passage of Arizona’s new immigration law, President Obama and other critics worried that it would lead to racial profiling. But while that concern has dominated the public debate and inspired a round of boycotts of the state, it played little role in the actual legal challenge the administration filed Tuesday against the law.

The word profiling appears only once, in passing, in the Justice Department’s lawsuit against the law, which allows the police to demand legal papers from those its officers think might be illegal immigrants.

And while the lawsuit does argue against a patchwork of state immigration laws Mr. Obama has fretted over, the idea that legal residents and citizens might find themselves swept up in Arizona’s enforcement, which is intended to discourage illegal immigrants from coming and prompt those here to leave, is not a central argument.

In this case it is clear the administration’s arguments in the court of public opinion took a backseat to those expected in the actual courtroom.

Justice Department officials and legal experts say the government, political consequences aside, faced up to cold legal practicalities. Racial profiling claims are difficult enough to prove, let alone before a law takes effect, and there are no examples that prosecutors can point to of legal citizens whose lives were disrupted by the Arizona law because they looked like an illegal immigrant to a police officer.

Dennis Burke, the United States attorney here, said in an interview that focusing the case on “pre-emption,” the legal doctrine based on the Constitution’s supremacy clause that elevates federal law over states’, was the surest route to suspending the law before it goes into effect July 29. The federal government has successfully used the pre-emption argument in several cases, but this would be the biggest test in an immigration case.

“The supremacy clause and a pre-emption argument require no waiting for the law to be actually in implementation,” Mr. Burke said. “It doesn’t allow the defense to say, ‘They are in here too early, judge, this should be allowed to play out for a while.’ “

The Arizona law, known as SB 1070, requires police officers to check the papers of people they stop or arrest if suspicious of their immigration status and makes it a state crime to be in the country without authorization.

The Justice Department did argue in its suit that the law “will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept into the ambit of S.B. 1070’s ‘attrition through enforcement’ approach.”

But people on both sides of the debate concede racial profiling is not what the Justice Department case, the biggest gun in the legal fight, is about.

To supporters of the law, this is validation of their claims that the law, which includes language forbidding profiling, is not discriminatory.

“It’s nice to see the Obama administration finally concede there is no allowance for racial profiling in Arizona’s immigration law,” said Kirk Adams, the Republican speaker of the Arizona House of Representatives. “After all the sound and fury about discrimination, it’s now clear that the administration’s entire case against SB 1070 rests on a technical claim that the law is indirectly pre-empted by federal immigration law.”

United States Representative Trent Franks, an Arizona Republican, said Mr. Obama’s discrimination worries are “glaringly absent from his lawsuit.”

“It is beyond ironic,” Mr. Franks added, “that the main claim in the lawsuit is that Arizona is wrongly pre-empting a federal responsibility when the entire reason the legislation was necessary in the first place was precisely because the federal government was simply not living up to its responsibility.”

And it turns out Kris Kobach, the University of Missouri law professor who wrote the bill for legislators here, had accurately predicted the government’s stronger case would rest over who has authority over immigration law and not concerns about racial profiling.

Lawyers in the other five lawsuits against the law that play up the potential for discrimination shrugged off their opponents’ glee, saying the government shrewdly chose not to “throw the kitchen sink” at the state, as Thomas A. Saenz of the Mexican American Legal Defense and Educational Fund put it.

They were happy the government stepped in and did so forcefully, even raising arguments, like the potential effect on diplomatic affairs, that others had not emphasized.

“I am overwhelmed by their case,” said Stephen Montoya, the lawyer for a Phoenix police officer who has sued, in part, on the basis that he would be forced to consider people’s race or ethnicity to enforce the law.

He and others said they had played up the possibility of racial profiling because, unlike the federal government, they represent clients who might be affected by the law and its repercussions.

Above all, they said, they will take anything that stops the law, even if it does not turn on what all the fuss has been about.

“To me it’s clear the Justice Department’s goal is to stop the law from going into effect and prevent the harassment and racial profiling from occurring,” said Lucas Guttentag, a lawyer for the American Civil Liberties Union.