Civil-rights groups have teed up lawsuits in six states, including Arizona, alleging that such laws are discriminatory. (The other states are Alabama, Georgia, Indiana, South Carolina, and Utah.) The complaints say that the laws deliberately target racial minorities, specifically Hispanics. The lower courts are largely agreeing. In five of the six states where the lawsuits are pending, courts have wholly or partially blocked the state laws from going into effect.
It's a good bet that one of these cases will make its way to the Supreme Court. Determining whether these state immigration laws are simple enforcement mechanisms or sanitized Latino-expulsion programs will be a contentious process.
The Supreme Court deliberately did not examine questions about racial profiling or harassment when it reviewed Arizona's law. Its decision was based solely on the comparatively dry concept of federal preemption, and the justices decided that Arizona had stepped over the line in several areas. The Court said that the state cannot criminalize work by undocumented laborers or create a state misdemeanor for failing to register as illegal. Local police officers won't be allowed to arrest without a warrant people they suspect are undocumented.
Yet it's the "show me your papers" provision that is poised to expose the thorny question of whether police can enforce immigration laws without taking into account the color of a suspected lawbreaker's skin. The specter of racial profiling isn't confined to immigration laws, of course. Whether it's airport screeners looking for terrorists or traffic cops stopping speeders, questions of race loom in the background of many law-enforcement issues. Police officers, for their part, say they cannot ignore a suspect's race, but that they don't look at race alone. The courts generally allow this balancing act.
The Supreme Court has said that police officers can use race as one factor in detecting criminals, provided that it is not the only factor and that objective crime trends indicate that a person's race matters in a particular situation. Such calculations are not simple, and they vary widely depending on the circumstances. How serious is the threat? How closely does the racial identification match the crime? There are no easy answers, no clean dividing line between right and wrong, and no way to establish a set of rules that will work in every circumstance.
To give just one example of how the "Is it fair?" analysis is ever-changing, the U.S. Court of Appeals for the 9th Circuit in 2000 had no problem contradicting the Supreme Court's 1975 United States v. Brignoni-Poncedecision when it determined that Hispanic origin is an impermissible factor for making traffic stops in Southern California. The 9th Circuit said in United States v. Montero-Camargo that the Supreme Court's earlier finding that ethnic appearance could be relevant relied on "now outdated demographic information." Too many Hispanics lived in the region, the Appeals Court said, to make Hispanic appearance a relevant factor in law enforcement.