Race continues to play a role in the immigration debate, but with its challenge yesterday, the Justice Department made it clear it's one they'd rather avoid. Despite public statements from the president himself and Attorney General Eric Holder expressing concerns that the law could lead to racial profiling, the federal challenge to Arizona's draconian immigration law is drawn along strict constitutional grounds -- that the law itself infringes on the federal government's constitutional role in enforcing immigration laws.
Calling the law "misguided," President Barack Obama told an Iowa audience in April that the law "undermines basic notions of fairness that we cherish as Americans," adding that he had "instructed members of my administration to closely monitor the situation and examine the civil rights and other implications of this legislation."
Holder, meanwhile, told ABC News in May that while the law wasn't "racist in its motivation," it could still lead to racial profiling.
Those concerns aren't directly reflected in the challenge filed yesterday, which maintains that the law "violates the Supremacy Clause of the United States Constitution," and that "the federal government has preeminent authority to regulate immigration matters." But unlike the lawsuit filed by a coalition of civil-rights groups in May, the challenge does not seek to argue that the Arizona law "deprives racial and national origin minorities of the equal protection of the laws within the meaning of the Fourteenth Amendment of the U.S. Constitution," or that it constitutes an impermissible prior restraint on the First Amendment right to free speech. It doesn't argue that the Arizona law will violate individuals' civil rights; rather it is a straightforward facial challenge to the constitutionality of the law.
So are these civil-rights groups disappointed? Not so, says Linton Joaquin, general counsel for the National Immigration Law Center, which is a party to the coalition's lawsuit. "The government is in a unique position to come forward and challenge this law on preemption grounds and that’s what they did, and that confirms what we’re saying in our lawsuit,” Joaquin says. “We agree that the entirety of this law is preempted by federal authority.”
Lucas Guttentag, director of the Immigrant Rights Project for the ACLU, said that while the Justice Department didn't challenge the law on 14th Amendment grounds, the challenge did allude those concerns. The Justice Department does argue that the law "will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute."
“We make the same point, but we’re more explicit that it will lead to racial profiling,” says Guttentag, who adds that the more important effect of the lawsuit will be to preempt similar laws in other states. "The lawsuit is an unmistakeable cannon shot across the bow of any other state or municipality that might be tempted to follow Arizona’s misguided approach,” Guttentag says.
Ultimately the Justice Department's strategy may reflect the concern over polling that shows Americans aren't as concerned about racial profiling as they are about immigration, and the recognition that if the challenge reaches the Supreme Court, it will have to persuade conservative justices who are more likely to be swayed by race-neutral arguments. It's evocative of the strategy Obama took during the campaign -- allude to race but avoid making it the center of the argument. Then as now, the Obama administration seems to believe that doing so will make said argument that much easier to lose.