By David K. Shipler
The cleanest, most honest way to oppose Arizona’s draconian immigration law is not the way it’s being done in Wednesday’s oral argument before the Supreme Court. It would be to oppose all local police involvement in federal immigration enforcement, including two programs that have been expanded by the Obama administration. They have led to just the kind of error and profiling feared by critics of the Arizona statute.
But profiling is not on the Court’s agenda, although it’s been raised in amicus briefs. The question at this stage is one of federalism, whether federal immigration law implicitly preempts the states’ powers to legislate in this area. Congress included no claim of preemption in the relevant law, so it’s up to the justices to decide whether there is implied preemption, a concept not warmly embraced by states-rights conservatives.
That is an important constitutional issue. But for swarthy people with foreign accents, the more practical, everyday matter—which will surely be litigated if Arizona’s law is upheld—is the license given to local police departments to stop and question and detain people on the basis of hunches and guesses that translate into racial and ethnic profiling. Many of them may be U.S. citizens and legal residents.
This is at the heart of the problems with the Arizona law, and it is the Pandora’s box opened by the two federal programs. In fact, both the Bush and Obama administrations have enlisted state and local authorities in the task of finding illegal immigrants. Mixing immigration enforcement into local policing has damaged individual liberties and the American culture of decency.
One program, named Secure Communities, links local law enforcement to a fingerprint database to check the legal status of someone who is arrested and fingerprinted by local authorities, even for a minor offense. Some 86 percent of the country’s jurisdictions, or 2,730 of 3,161, have signed up so far, with the Department of Homeland Security hoping for 100 percent participation in 2013.
Databases have proved inaccurate, however, and in one sample period—2002-2004—generated a high error rate that labeled 42 percent of those who were checked as illegal, although they were properly documented. Many were detained. The program has also generated fear among some immigrants, even victims of domestic violence and other crimes, who hesitate to call police lest their illegal status be discovered. The abuse is well documented: In the first four months of 2011, 73 percent of those in New York deported through Secure Communities had not been convicted of a crime.
The second program, known as 287(g) after the section of the immigration statute that authorizes it, delegates to local police, who are trained in a four-week course, the authority to enforce immigration law. This is especially pernicious, again because of the mixture of everyday policing with immigration issues. In some jurisdictions, most individuals arrested under this program are being detained for standing at day labor sites and committing such minor traffic offenses as driving with a broken tail light or without a seatbelt. About 1,500 local officers have been trained in 24 states under 68 agreements, including eight jurisdictions in Arizona.
Violations of the Fourth and Fifth Amendments are facilitated by the program. While officers of Immigration and Customs Enforcement (ICE) may legally ask for immigration papers, immigration inquiries by local police cannot be constitutional without following legitimate stops for ordinary, non-immigration offenses, governed by the 1968 Supreme Court decision in Terry v. Ohio requiring either reasonable suspicion that a person is armed or probable cause to believe that he is involved in a crime. Without that prerequisite, a stop in unconstitutional, and if information about the person’s immigration status is obtained as a result, it has been obtained illegally.
The practice on the street is less pure. Lawyers have seen police manufacture minor crimes to justify arrests, or simply ask people for their papers. Those who admit being undocumented are turned over to ICE, which jails them and begins deportation proceedings. Even if the initial stop was illegal, the admission given to police or ICE cannot easily be suppressed in immigration court unless egregious coercion can be shown.
Six months into the Obama administration, two dozen civil rights organizations, which naively imagined the new president closing off this avenue of rights abuses, expressed their stunned condemnation of the program’s continuation.
The Arizona law is somewhat worse, but only somewhat. It commands police officers and government agencies, during “any lawful contact,” to check anyone’s immigration status “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.” The term “any lawful contact” means that cops can approach and question people solely for immigration purposes, without requiring a traffic violation or other suspected offense as a prerequisite for a stop. “Lawful contact” might apply to the most benign encounters: an officer who is asked for directions, sees a law-abiding driver, or merely notices a pedestrian on the street. Furthermore, “reasonable suspicion,” the least demanding form of justification for a police inquiry, could be aroused by little more than skin color, accent, and other attributes of ethnicity that would surely catch non-Anglo U.S. citizens in demands that they show their “documents.”
In light of this extensive entanglement with local law enforcement, one wonders whether the federal government can reasonably argue—as it probably must to convince the conservative justices—that the state law conflicts with federal law and interferes with federal enforcement. In any event, the best policy would be to get local police out of the immigration business.