As I noted earlier this morning, the Justice Department has challenged Arizona's draconian immigration law on the grounds that it infringes on the federal government's authority to enforce immigration laws, not on the basis of civil rights. I noted that, given the circumstances, this might be a smart political choice. A coalition of civil-rights groups filed a challenge months ago contending that the law didn't merely preempt the federal government's authority but that it would lead to racial discrimination.
But there are at least two practical legal reasons for the DoJ to avoid the civil-rights route as well, according to Cristina Rodriguez, a law professor at New York University School of Law.
The first is that the DoJ is challenging the law before it has been enforced, which means they'd have to prove that there is no way the law could be enforced in a nondiscriminatory fashion, and they'd have to do it without any real-world examples. "[DoJ lawyers] would have to prove that it was impossible to enforce the statute without discrimination," Rodriguez said. "You have to show that in no application would this law be constitutional."
The second issue is that in order to show a violation of the equal protection clause of the 14th Amendment, you'd have to prove an intent to discriminate. The legal threshold for proving intentional racial discrimination is very high."If you wanted to make an equal protection claim, you'd have to show an intent to discriminate on the basis of race, and that's exceedingly difficult to show as a legal matter," Rodriguez says. For one thing, Rodriguez explains, "you'd have to show the intent of the legislators to discriminate" in passing the law. Even with the incendiary rhetoric of Arizona state Sen. Russell Pearce, the provision in the bill nominally prohibiting racial profiling would again make such a challenge a tough sell without concrete examples of discrimination. That said, if the DoJ's challenge fails, those kinds of lawsuits are likely to follow.
Does this mean, as James Doty writes, that the president and the attorney general "won't call racism racism"? I think it's clear that avoiding arguments over race has been part of Obama's political strategy since the early days of the 2008 presidential campaign and that such arguments have typically conferred an advantage to his opponents. But it's also true that a challenge to the Arizona law on civil-rights grounds would be significantly more difficult to prove than the one he chose to make. Whether the president is missing an opportunity to make a rhetorical, rather than legal, case against racial profiling is a separate question.