Even though the ink is barely dry on the Justice Department’s lawsuit against Arizona’s new illegal immigration law, Attorney General Eric Holder is already speculating about what to do if (i.e. when) his challenge fails: play the race card.
In legal terms, the Justice Department’s current lawsuit is a “facial” challenge, meaning that the DOJ alleges Arizona’s SB 1070 is unconstitutional “on its face,” or by its own terms. Since SB 1070 mirrors federal law, only the most liberal application of the preemption doctrine would consider identical versions of the same statute to be in conflict, thus requiring federal law to preempt SB 1070.
Because Arizona’s the law is valid on its face the DOJ’s current lawsuit will lose, and SB 1070 will be allowed to go into effect. Then Arizona law enforcement will be able to ask a person about their immigration status if the person is stopped because of reasonable suspicion she is engaged in criminal activity. According to Holder, a few months after implementation the DOJ would then challenge SB 1070 “as applied” by law enforcement because officers would allegedly ask for immigration papers from a person because of his race – even though SB 1070 explicitly prohibits the officer from doing that.
But in order to get enough empirical evidence to prove systematic racial profiling, the DOJ will have to closely monitor the situations where Arizona officers apply SB 1070. To do that will require Immigration and Customs Enforcement (ICE)to cooperate with Arizona officers checking a suspect’s immigration status; something the ICE chief is loathe to do. Moreover, since nearly all of the illegal immigrants in Arizona are Hispanic, nearly all of the suspects questioned and verified will be Hispanic. Does the near universal application of SB 1070 to these suspects prove racial profiling? Or, on the other hand, does it prove merely that a particular subset of the Arizona population contains a statistically outrageous number of illegal immigrants?
Both the current lawsuit and this new proposal by the Attorney General are fools’ errands in sloppy litigation. Eric Holder is 0-for-Everything as the nation’s top prosecutor. Hopefully, President Barack Obama will let him get back where he belongs: challenging valid laws for the sake of liberal causes as a private attorney.