Justice Department Gearing Up to Challenge AZ Immigration Law.

The LA Times reports that the Justice Department is preparing a challenge to Arizona's immigration law that will argue that the law unconstitutionally infringes on the authority of the federal government to enforce immigration laws and that it could violate the civil rights of Latinos in Arizona who are there legally. The exact details of the challenge aren't out yet, but a coalition of civil-rights groups recently filed a challenge along similar lines.

Conservatives have gotten a lot of mileage out of criticizing Eric Holder and Janet Napolitano for not reading the Arizona law before implying it might be unconstitutional. This is silly. If I said that Utah were making it a crime to be a member of the Democratic Party, even a non-lawyer would assume the law was probably unconstitutional. The Constitution gives Congress authority to "establish an uniform Rule of Naturalization" so it makes sense to assume that a state law that preempts existing federal immigration statutes might be problematic. Not reading the law before filing a challenge and not reading the law before speculating about its constitutionality are two entirely different things, and Holder would only be derelict if he did the former.

One of the primary arguments of the "read the law" chorus is that since the law has a provision outlawing racial profiling it won't unfairly target Latinos. This is basically an extension of color-blind racist philosophy into law -- namely the text of the bill outlaws racial profiling, despite the fact that it is clearly aimed at the state's Latino population. The reason you can pass a law that encourages racial profiling in spirit while prohibiting it in letter is that everyone has a concept in their head of what an "illegal immigrant" looks and sounds like. A police officer wouldn't have to make a judgment based on race alone; as the civil-rights groups' lawsuit points out, they could make such decisions based on racialized factors such as "language, accent, clothing, English-word selection" or "failure to communicate in English." Furthermore, since the amended law now compels police to inquire about immigration status while investigating city ordinance violations, there's a built-in racial-profiling alibi.

The Arizona law is, essentially, the legal version of that infamous phrase, "I'm not racist but..."

-- A. Serwer

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