In arguments before the Supreme Court on Arizona’s SB 1070 immigration law last month, the elephant in the room—racial profiling and discrimination—made just a short-lived cameo appearance. When the Justice Department’s top lawyer rose to make the Obama administration’s case against SB 1070, the Chief Justice immediately demanded confirmation that “no part of your argument has to do with racial or ethnic profiling, does it?” A few moments later he reiterated: “OK. So this is not a case about ethnic profiling.”
The Chief Justice may have dismissed the idea, but racial and ethnic profiling is exactly what lies at the heart of the debate around SB 1070, a law that targets Arizona’s Latino population for continual stops, interrogations, and status checks. And while the Obama administration directly challenged Arizona’s controversial law on narrower grounds—that it violates federal law and hence is “preempted” under the Constitution—a discrimination claim could and should have been evoked as part of that legal principle. Indeed, years of judicial precedent, going back to the nineteenth century, demonstrates that ethnic discrimination against immigrants itself interferes with core principles of federal law.
To be sure, part of the reason why racial profiling is not directly before the Court is that the administration—importantly—challenged the law before it could go into effect, in order to stop its implementation. To do that, the Justice Department mounted a "facial challenge," which tries to stop the law when its broader impact, as measured by empirical evidence, is not yet available.
But the second and more troubling reason is the government's unduly narrow understanding of its own case. The legal claim of federal “preemption” compels courts to strike down state laws that interfere with federal primacy. But preemption is a famously malleable doctrine. Critical to the question of whether a state law is inconsistent with federal law is which laws the Court is asked to consider as part of the federal interest.
In the oral arguments, however, the Court considered only whether SB 1070 interferes with federal immigration law and federal immigration priorities. As a result, the justices' questions turned on whether Arizona’s mandate interfered with immigration enforcement, including the Obama Administration’s recent and laudable exercise of “prosecutorial discretion” that focuses deportation resources on those it deems as high priority targets.
Sadly missing was any invocation or discussion of other federal laws and policies that are directly relevant to discrimination and profiling. Properly understood, the federal government’s preemption claim should have encompassed the harm from discrimination and profiling that the law necessarily triggers. To be sure, the Solicitor General argued that harassment of foreign nationals would occur, that abuse is inevitable, and that detentions of citizens would last hours not minutes. But these harms were invoked to show why SB 1070 would interfere with U.S. foreign relations, not that the discrimination itself violates core principles reflected in federal law.
IT DIDN'T HAVE to be this way. In other times when states have targeted foreigners during one of our cyclical periods of nativism and parochial hostility, the Supreme Court has grappled with state immigration legislation without limiting its inquiry to the almost indecipherable federal immigration laws. Instead, the Court would consider whether federal civil rights statutes had also been violated. A state’s treatment of non-citizens was routinely considered in light of whether it was based on, or caused discrimination. In other words, there was no reason that racial and ethnic profiling needed to be peripheral to the government's seemingly technical federal preemption case.
In fact, part of the reason Congress enacted its landmark civil rights statutes of the post-Civil War period was to prevent states from enacting laws that discriminated against immigrants. The laws, of course, were clearly designed to protect equal rights and fundamental freedom for newly freed slaves and all African Americans, but what’s less widely understood is that Congress also had in mind the despicable way Chinese immigrant workers were being treated at the time in California and elsewhere. They faced discrimination, abuse, brutality, and worse under state laws, local ordinances, and vigilante mobs. Like today, some proponents of those discriminatory measures found succor in the Chinese immigrants’ disfavored status under federal law; at the time, people of Chinese descent had the burden of being permanently barred from ever becoming citizens under “white only” naturalization laws.
Yet the new federal civil rights laws, seeking to guarantee protection of Chinese immigrants, outlawed “alienage” discrimination. The most important provision mandated that every “person” shall the have the same right to commercial transactions and to the “full and equal benefit of all laws and proceedings” as “white citizens.” The law’s formulation was intended to prohibit both race and alienage discrimination. It established a federal norm of equality requiring all “persons” to be treated the same as white citizens, thereby outlawing race discrimination, and all persons to be given equal rights as citizens thereby outlawing “alienage” discrimination.
The Supreme Court recognized the broad scope of these laws when it struck down a California law in 1948 that denied Japanese aliens—who were also denied citizenship under the laws of that era—the right to earn a livelihood as fishermen in coastal waters. Although the exact formal parameters of these post-Civil War civil rights laws remain in dispute, the critical point is that federal law manifests an overriding principle of non-discrimination against “aliens” that preempts state laws.
In 1971, the Supreme Court announced precisely this principle. In Graham v. Richardson the Supreme Court issued a landmark ruling holding that another Arizona law—denying welfare to longtime immigrants with green cards—violated the Equal Protection guarantee of the Fourteenth Amendment. In that case the Court also addressed the same kind of federal preemption claim asserted against SB 1070. In that context, Justice Blackmun explained at length that the Arizona law not only was inconsistent with federal immigration policy but violated the broader and deeper federal principles of the century-old federal civil rights law prohibiting alienage discrimination. In its decision, the Court held that federal law and policy preempt state authority, not only when it is inconsistent with federal immigration law but also when it contravenes the fundamental federal policy prohibiting state discrimination on the basis of “alienage.”
Therefore, even on the most technical legal grounds, the federal government's interest in state immigration laws should not only be a question of their interference with federal immigration enforcement but also of their impact on the state’s immigrant and Latino populations. In the case of the SB 1070, the Arizona law clearly violates the federal government's non-discrimination principles. We should not have to wait for civil rights cases years from now to establish this point. The Supreme Court should recognize now—as it did more than three decades ago—that federal law has primacy not only on immigration statutes but also on questions of preventing discrimination. To the extent that the Justice Department asked the Court to only weigh SB 1070 against the intricacies of federal immigration laws, it missed this critical point.
Lucas Guttentag teaches at Yale Law School, where he is the Robina Foundation Distinguished Senior Fellow in Residence, and at Stanford Law School. He is the former founding national director of the ACLU Immigrants’ Rights Project.