The Arizona Law Isn't About Racial Profiling

About Robert Alt:

Robert Alt is a senior legal fellow and deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation.

Arizona's SB 1070 immigration law requires officers stopping or arresting an individual for a reason other than a suspected immigration offense to contact federal immigration authorities to verify the individual's immigration status if he has a reasonable suspicion that the person is unlawfully present in the United States. The law encourages the cooperative enforcement of federal immigration law in Arizona, and therefore the Supreme Court should find it constitutional.

It's important to understand what the case is not about. First, it's not about whether Arizona's immigration law is good policy—that is a question for the legislatures. Arizona's legislature considered the policy, including the fact that Arizona bears the disproportionate burden of illegal immigration: Approximately one third of illegal border crossings occur in Arizona, and Arizona has become a major corridor for drug and human smuggling.

[See a collection of political cartoons on immigration.]

Second, the case is not about racial or ethnic profiling. Arizona's law expressly prohibits consideration of race, color, or national origin except as permitted by the state and U.S. Constitution, and requires that the law be "implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." The language is remarkably similar and arguably more restrictive than the Justice Department's own guidelines prohibiting racial profiling by federal officers.

So what is the case about? Whether federal immigration law "preempts" Arizona's law. Under the Constitution's Supremacy Clause, if a federal law and a state law conflict, the Constitution says the federal law must be enforced. But there are plenty of areas where state and federal laws harmoniously regulate the same areas, where both laws can co-exist without any constitutional problem. That's what is happening here. Indeed, far from prohibiting local enforcement, one federal court of appeals noted that federal law "evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws."

[Read: Immigration Reform Is Key to Job Creation.]

The Justice Department has argued that Arizona's law conflicts with the Obama administration's enforcement priorities, which include the nonenforcement of immigration laws passed by Congress in a broad array of circumstances. But the Constitution doesn't permit the president to run roughshod over state laws because he has different priorities. If he wants to prevent Arizona from cooperatively enforcing immigration offenses, that judgment needs to be put into law by Congress.

Because federal law doesn't conflict with Arizona's law, but actually requires federal cooperation with the kind of immigration status inquiries that SB 1070 requires state officers to make, the Supreme Court should uphold the law.

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Arizona,

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immigration reform