Monday, July 19, 2010

The Grand Except

Arizona Law Professor Jack Chin is far, far more charitable than I'm inclined to be towards UMKC Law Prof Kris Kobach, a principal drafter of the Arizona anti-immigrant law who is falsely claiming in bars racial profiling. Of course, it doesn't -- the bill says that law enforcement officers "may not consider race, color or national origin . . . except to the extent permitted by the United States or Arizona Constitution." Which, under Arizona and federal law, they can -- at least to some extent. Professor Kobach simply omits the qualifier at the end of the passage.

Professor Chin graciously accepts that "the misleading quotation reflects Prof. Kobach's honest [though incorrect] recollection of the law", and urges him to go back to the legislature and get them to fix the language so it actually bars racial profiling. But, "[o]n the other hand, on the off chance that the law was actually intended to" sanction racial profiling, Professor Chin rightfully says the law's proponents should acknowledge that it does so.


joe said...

Well, what is the legal definition of "racial profiling"?

N. Friedman said...


Arguably, the Arizona statute runs into the Supremacy Claus. Arguably, it is bad legislation.

However, the racial profiling argument, it seems to me, is a red-herring, most especially if the law is required to follow what is legal under Federal Law. Unless, of course, your view is that the Court's view of the US Constitution is wrong on the topic - something unlikely to help you all that much in the Court system.

It could, I would think, be argued that the law will, in the manner it is either implemented (either as the law is inherently designed or as it comes to be implemented), involve a violation of Constitutionally required equal protection or due process, but that seems to be a different argument than the one you are floating here. It also seems an unlikely argument to prevail.

More importantly... At some point, a law will be passed by Congress that is directed to addressing those migrating to the US in contradiction to Federal law. If such a law is directed to forcing out such immigrants, the issue of how to apprehend such immigrants will come to a head. More than likely, some form of profiling will be. by necessity, involved, at least if policing is authorized in anything more than a token sense.

My view is that the better policy would be to legalize the illegal immigrants, subject to their coming forward by some specified date. If, however, as occurred the last time the Federal government "solved" the illegal immigrant "problem," illegal immigration continues unabated, the level of resentment will continue to rise and, with its continuation, more and the number of people who would otherwise favor a liberal agenda will continue to diminish.

David Schraub said...

Did you even follow the link? Professor Chin notes that both the US Supreme Court and the Arizona Supreme Court have held that at least some amount of racial profiling is constitutionally permissible. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975) ("The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in evaluating reasonable suspicion under the Fourth Amendment.); State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982) ("[E]nforcement of immigration laws often involves a relevant consideration of ethnic factors.").

N. Friedman said...


Yes. I read the linked-to material. That is why I do not understand why you think raising the race issue is of any virtue. It is not the issue.

PG said...

N. Friedman,

The US Constitution as interpreted by the Supreme Court is not the sum of good policy choices. The fact that the Constitution has been interpreted to allow racial profiling does not make racial profiling a good policy choice.

PG said...
This comment has been removed by the author.
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