Jan Brewer vs. Eric Holder On SB 1070.

Over the weekend Arizona Gov. Jan Brewer taunted Attorney General Eric Holder over the fact that the Justice Department lawsuit against SB 1070 didn't involve racial profiling:

"Why would they have to hesitate, after all the comments they made, and all the outrage that they made against the bill in regards to racial profiling, that it didn't show up?" Brewer told The Associated Press during a break in the National Governors Association meeting in Boston.

So either Brewer doesn't understand how the law works with regards to racial discrimination, or she was being disingenuous. As I reported last week, the standards for proving intentional discrimination are very high, and such a case would have been even more difficult to prove absent real-world examples of racial profiling resulting from the law. It's hard to have those when the law hasn't even taken effect yet.

Holder explained as much when he hinted there might be a racial profiling case in the future, should the law be upheld:

“It doesn't mean that if the law, for whatever reason, happened to go into effect that six months from now, a year from now, we might not look at the impact the law has had in whether or not to see to whether or not there has been that racial profiling impact," Holder said. "And if that was the case, we would have the tools and we would bring suit on that basis.”

This confirms what I said last week: As it stands, the strongest case against SB 1070 is that it unconstitutionally preempts federal law on immigration. Should the law be upheld, the Justice Department could pursue a lawsuit based on instances of racial profiling that resulted from its enforcement. As for assuming that the law would cause racial profiling, the law itself is clearly aimed at the state's Latino population -- no one in Arizona is complaining about a sudden increase in the state's French-Canadian population.

Contrary to Brewer's statement, the Justice Department's decision not to file a complaint based on racial profiling isn't a tacit acknowledgment that the law can be enforced without racial profiling; rather, the decision reflected the exceedingly high legal standards that need to be met in order to prove intentional discrimination.

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