Racial profiling anyone?


I guess U.S. Solicitor General Donald Verrilli Jr. thought racial profiling just wasn’t sexy enough for the Supreme Court.

Or maybe it was too obvious.

And then I suppose when you get to the high court, you want to impress the justices with the finer points of constitutional law, which leads you to such ideas as the usurpation of federal rights by the states, especially on international matters such as immigration. It’s not a bad strategy, to preempt the state getting into the immigration business. It’s narrow. It seems understandable. It could work.

But maybe the more human approach would have worked better.

On Wednesday, Verrilli went before the high court with the intention of tearing down SB 1070, Arizona’s controversial anti-immigration law.

I don’t think he succeeded.

Parts of the law have been blocked for two years because of its highly contentious components.

The four main parts include requiring police to verify the immigration status of everyone they stop who they might reasonably suspect may be here illegally—even if a suspect could be incarcerated for days or weeks.

A second provision would allow the state to arrest any foreign citizen suspected of committing a deportable crime.

A third provision would force foreigners to carry registration documents.

A fourth provision would make it illegal for an undocumented worker to seek or perform work.

Before the fireworks started, Chief Justice John Roberts asked Verrilli if racial profiling would be a part of the argument. Just to make sure. I mean, it is an issue that would seem to be a fairly obvious one, no?

But Verrilli admitted that racial profiling wasn’t part of his case today. Not for this SCOTUS showdown. Too bad. By their later comments, Justices Roberts and Scalia seemed to understand where parts of Arizona’s harsh law might lead to discrimination.

When Verrilli was describing the law’s effects, even Justice Scalia commented, “Sounds like racial profiling to me.”

Instead, Verrilli tried to take down the law on the basis that states can’t do what’s not in their purview. He argued that only the federal government can enforce immigration laws.

The justices weren’t buying it.

They seemed to suggest: why can’t states help out the Feds with their own laws?

From the hearing transcript:

JUSTICE SCALIA: Anyway, what — what’s wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is.

GENERAL VERRILLI: I think it could, but I think that’s quite —

JUSTICE SCALIA: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it’s just an amateur bank robber, you know, we’re — we’re going the let it go. And the state’s interfering with our–with our whole scheme here because it’s prosecuting all these bank robbers.

GENERAL VERRILLI: Well, of course, no one would —

JUSTICE SCALIA: Now, would anybody listen to that argument?

GENERAL VERRILLI: Of course not.

JUSTICE SCALIA: Of course not.

GENERAL VERRILLI: But this argument is quite different, Justice Scalia, because here what we are talking about is that Federal registration requirement in an area of dominant Federal concern, exclusive Federal concern with respect to immigration, who can be in the country, under what circumstances, and what obligations they have–

JUSTICE KENNEDY: Now, are you talking about now or —


JUSTICE KENNEDY: — or does this argument relate to 2 as well?

GENERAL VERRILLI: This is an argument about section 3.

That’s the kind of day Verrilli had. He wasn’t helping himself.

Surprisingly, not even the justices you’d figure would be receptive to Verrilli’s arguments were propping him up.

After Verrilli asserted that “systematic cooperation” was wrong, Justice Sonia Sotomayor said candidly, “You can see it’s not selling very well. Why don’t you try something else?”

You mean like racial profiling?

If SB 1070 is upheld by the justices in a decision expected in June, immigrant groups may yet get to play racial profiling and the law’s discriminatory nature as a trump card.

It certainly wasn’t played by Verrilli this week.

Emil Guillermo is an independent journalist/commentator.
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