What the Arizona Lawsuit Isn't About

The Department of Justice lawsuit against Arizona, seeking to prevent its new immigration law from taking effect, voices more than one substantive challenge to the law, but one issue is wholly missing from the department's legal case: racial profiling.

In the Justice Department's 25-page complaint, the term "racial profiling" only appears once, in reference to the amendment to SB 1070, signed several days later by Gov. Jan Brewer, who announced in an official statement that she was signing it to allay racial profiling fears.

The crux of the case is 1) the Constitution's Supremacy Clause, the provision that federal law supersedes state and local law, 2) the notion that Arizona's law interferes with the federal government's immigration laws, enforcement, and foreign policy concerns, and 3) that SB 1070 violates the Commerce Clause by restricting the movement of aliens from state to state (even lawful aliens, since DoJ says its citizenship verification procedures are faulty). See a .pdf of the complaint and more explanation of the case here.

But racial profiling isn't a substantial part of it, despite the fact that racial profiling is the main criticism voiced by the bill's opponents, who say that it will lead to unnecessary police stops and harassment of Latinos.

The Justice Department does argue, in its complaint that SB 1070 will cause the "detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept into the ambit of S.B. 1070's 'attrition through enforcement' approach." This gets at the racial-profiling concern, and it's a complaint that's been voiced by the Arizona Hotel and Lodging Association, which says it has been frantically trying to inform potential visitors, mostly via its website, of how the new law will work and whether tourists and business travelers will have to worry about going to jail if they forget to bring their driver's licenses when leaving their hotels.

But it's not quite the same thing, and the DoJ, in addressing what SB 1070 mandates, dispels a common misconception about the law in acknowledging that it only requires Arizona law enforcers to demand citizenship documentation if someone has already been stopped, lawfully, by police for something else.

The Justice Department argues that SB 1070 is problematic because it places an unrealistic burden on immigrants and naturalized citizens alike: DoJ warns that it will mean legal citizens (presumably those who don't have driver's licenses or naturalization cards on them, or who are under 16) will be unnecessarily detained when they can't produce proof of citizenship, and the department points out that some illegal immigrants are purposefully allowed to stay for humanitarian reasons (political asylum, for instance) and wouldn't have citizenship papers anyway (SB 1070, DoJ argues, criminalizes this). Furthermore, DoJ says, the federal government will have to devote resources to verifying citizenship of detained individuals, since naturalization is a federal endeavor.

But while President Obama has said that SB 1070 leaves the door open for profiling--and in fact has posed that, loosely, as one reason he asked the Justice Department to look into it, as he voiced concerns over the law in a joint appearance with Mexican President Felipe Calderon--and while racial profiling is the top political criticism of Arizona's new law, the Justice Department is sticking to the constitutional challenge.