Discrimination, Immigration Law and the Constitution in 2020
For the Constitution in 2020 conference on The Future of Equality.
In 2020, legislatures and courts addressing immigration will likely continue to struggle with two longstanding, fundamental questions: First, when is discrimination on the basis of race, ethnicity or origin acceptable, and second, when is affirmative action or some other accounting for previously disadvantaged groups warranted. Affirmative action is not normally thought of as part of the immigration debate, but Rogers Smith among others compellingly argues that one of the reasons undocumented Mexican immigrants should be treated with some consideration is the history of U.S. mistreatment of Mexicans and Mexican Americans, and interference in Mexico. Mexicans are hardly alone in this respect; 2012 will mark the 130th anniversary of the Chinese Exclusion Act of 1882. Ultimately expanded to all Asians, special restriction on Asian immigration was eliminated only in 1965.
Given that race is supposedly a suspect classification, it may seem odd that the scope of affirmative discrimination on the basis of race remains a pressing issue. But with modern immigration and national security politics, claims about the explicit and legitimate use of race in government action have reemerged with force. For an example of such explicit use of race that is allowed by law used in practice, consider whether police may rely on apparent Mexican ancestry in stopping suspected undocumented migrants. (For some reason, the question of using apparent Canadian ancestry as a basis for arrest never comes up.)
Use of race in immigration enforcement has been brought to the fore by SB1070, Arizona’s new and widely imitated state immigration law. Marc Miller and I contend in a forthcoming Duke Law Journal article that SB1070 is unconstitutional in many of its major provisions as a regulation of immigration reserved to the federal government, and in particular as a regular through state criminal law, but, like most commentators we do not question that the states can have some role under some circumstances in helping to enforce federal immigration law.
Kevin Johnson and I believe that SB1070 may be the first modern U.S. statute affirmatively authorizing racial discrimination in law enforcement. This is a contentious proposition, because it is the reverse of the claim of those who drafted and enacted SB1070 who insist it expressly prohibits racial profiling. Notably, Kris Kobach, an author of SB1070, former professor at the University of Missouri-Kansas City School of Law and now the Secretary of State of Kansas wrote in the National Review: “In four different sections, the law reiterates that a law-enforcement official ‘may not consider race, color, or national origin’ in making any stops or determining an alien’s immigration status. With this language, S.B. 1070 goes to extraordinary lengths to protect against racial profiling; most state and federal statutes do not include such special protection in their text. In addition, all the normal Fourth and Fourteenth Amendment protections against racial profiling will continue to apply.”
But Secretary Kobach’s quotation of the statutory language is not accurate. Unfortunately and mysteriously, it omits the key, operative language. What the law actually says is that police “may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution.” A.R.S. § 13-1509(C). Secretary Kobach, an experienced practitioner and scholar in this area, certainly knows that the exception is not boilerplate, but the functional part of the statute. As Toni Massaro, Carrissa Hessick, Marc Miller and I have noted, both the United States and Arizona supreme courts, interpreting the equal protection clauses of their constitutions, have held that race is a permissible factor in immigration enforcement. Apparent Mexican ancestry can be used as a factor to stop someone on suspicion of being undocumented. In 1975, the Supreme Court unanimously concluded that “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975). Similarly, the Arizona Supreme Court agrees that “enforcement of immigration laws often involves a relevant consideration of ethnic factors.” State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982). For practical purposes, then, the “prohibition” of SB1070 and its progeny should read this way: “Race may be used in the enforcement of this section to the maximum degree permitted by the U.S. and Arizona Constitution.” But this is no Arizona innovation; the state only took advantage of power to discriminate offered by the Supreme Court.
We have the remarkable situation of discrimination that is simultaneously perfectly legal yet unspeakable, so odious that the very people who authorized it have to deny it. This is an unmistakable sign that this discrimination is contrary to modern social values. Perhaps by 2020, the Supreme Court may think it is safe to overrule this anomalous and queasy-making line of cases.
Gabriel "Jack" Chin is Chester H. Smith Professor of Law, Professor of Public Administration and Policy and Director, Program in Criminal Law and Policy at the University of Arizona, James E. Rogers College of Law. You can reach him by e-mail at jack.chin at law.arizona.edu