Civil Libertarians Win A Few.

For once, it's a happy day for civil libertarians. In Arizona, Judge Susan R. Bolton blocked many of the offending parts of Arizona's SB 1070 immigration law from going into effect today, including Section 2B, Section 3, and Section 5. The Fair Sentencing Act, which lowers the crack/powder cocaine disparity from 100:1 to 18:1, effectively making the law one-fifth as racist as it used to be, passed the House and is headed to the president's desk. That's coming on the heels of the Senate blocking the Democratic remedy to the Citizen's United decision, the DISCLOSE Act, which -- though it may surprise conservatives -- the ACLU opposed.

On SB 1070

Section 2B is the Section that directs law-enforcement officers to demand someone's immigration status if there is "reasonable suspicion" that the person is in the country illegally. This is what liberals have derisively referred to as the "papers please" section of the law. Even though it was later updated to prohibit racial profiling, in practice everyone knows that there are ostensibly race-neutral proxies -- such as accent, English fluency, and the like -- that in practice can be used as pretexts for racial profiling. Judge Bolton also blocked the part of Section 3 that makes it a crime to fail "to apply for or carry alien registration papers." Section 5 is aimed at day workers and those who hire them, the only part of that section that was blocked is the part that essentially makes it illegal for the undocumented to "solicit, apply for, or perform work." The part of Section 6 that authorizes "the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States," was also blocked.

Gabriel Arana has the right take: "In the end the Obama Justice Department chose the stronger legal argument, as opposed to the more 'sincere' one, allowing it to secure this minor win." It's important to remember that the Justice Department wasn't "afraid" of filing a suit based on racial discrimination; it's that the burden of proof would have been too high absent real-world examples of the law's discriminatory effect, and Attorney General Eric Holder suggested that had the government failed to secure an injunction, they might have sued on those grounds as well.

The Fair Sentencing Act

The Fair Sentencing Act is a bittersweet victory. The original 100:1 crack/powder disparity was based on dubious science and racially influenced hype that Americans of all backgrounds bought into. More than 80 percent of those arrested for crack offenses have been black despite the fact that most crack users are white, a reflection of how the draconian penalties in the war on drugs tend not to afflict people of means. While the law is an important step, it nonetheless retains a disparity that has no basis in reason or science, and the existing disparity will still disproportionately affect African Americans, with the attendant economic and social costs of excessive punishment. The law also isn't retroactive, meaning that everyone convicted under the previous sentencing guidelines won't get any relief.


It may surprise many conservatives -- and liberals -- but the ACLU opposed the DISCLOSE Act on First Amendment and privacy grounds. They argued that forcing organizations to disclose the identity of their donors might chill speech and violate the privacy of said donors -- and they noted that the exceptions in the bill would exempt "more mainstream organizations" depending on their size and source of capital.

On the principle, I side tentatively with Judge Antonin Scalia on this one -- as he wrote in the 8-1 decision upholding campaign-finance laws in California that force advocacy organizations to disclose their donors, "harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed." That said, the bill's exemptions made me uncomfortable as well.

All in all though, it's been a good couple of days for civil libertarians, not just in the courts but in Congress. And how often do you get to say that?

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