Immigration, Racism & the Courts

Blocked on comprehensive immigration reform, the Obama administration has won some piecemeal victories against GOP demands for more draconian moves against “the undocumented.” Deportations of “dreamers” have been stopped and much of an Arizona law was overturned, but more battles lie ahead, writes Marjorie Cohn.

By Marjorie Cohn

The issue of immigration has been tossed about like a political football for some time. Democrats argue that migrants who have spent many years in the United States should be permitted to apply for lawful status. Republicans criticize these proposals as “amnesty.” But Congress has been unable to agree on comprehensive immigration reform.

Three and one-half years into his term, President Obama announced on June 15 a policy to halt deportations for many undocumented immigrants who came to the United States as children. They must be under age 30, have come to the United States when they were under age 16, have lived in the U.S. for at least five years, be either an honorably discharged veteran or a high school graduate, and have suffered no felony or “significant” misdemeanor convictions.

President Barack Obama announces his new policy against deportation of "dreamers" on June 15, 2012. (White House photo)

Ten days after Obama revealed his new program, the Supreme Court issued its long-awaited decision on Arizona’s SB 1070. Arizona had enacted a repressive law aimed at “attrition [of undocumented immigrants] through enforcement.” Five other states followed suit and waited as the high court considered the constitutionality of Arizona’s law.

In a victory for those who support a humane immigration policy, the Court overturned three sections of SB 1070: Arizona cannot criminalize unlawful presence in the United States, or working without papers; and the decision to arrest someone for unlawful presence in the U.S. is solely a federal issue. The Court made clear that the enforcement of immigration law is reserved to the federal government.

But unfortunately, the Court unanimously upheld the most controversial provision of SB 1070, at least for the time being. Section 2(b) requires state officers to determine the immigration status of anyone they stop, detain or arrest if they have “reasonable suspicion” the person is an undocumented immigrant. Although the Court didn’t address racial profiling in its opinion, how can this statute possibly be enforced without considering skin color, language and clothing?

Section 2(b) says that Arizona officers “may not solely consider race, color or national origin” in the enforcement of this section. But 2(b) effectively requires the consideration of race, color and national origin because it is unfathomable how a law enforcement official could avoid considering those factors in deciding whom to investigate under the new law. Even the most well-meaning officer cannot possibly determine whether an individual may be undocumented without making judgments based on apparent race, color and national origin.

As Tucson Police Chief Roberto A. Villasenor noted, “It says you can’t use race and ethnicity. If you’re not paying attention to race and ethnicity, what other elements are there? If it’s 95 percent based on race and ethnicity, what’s the other 5 percent? No one knows.”

The Supreme Court’s decision was apparently a compromise, leaving open the possibility of additional constitutional challenges. A majority of the Court was not prepared to rule at this point that section 2(b) will interfere with federal immigration enforcement. Future lawsuits will argue that 2(b) in practice is preempted by the federal government’s exclusive jurisdiction over immigration, and that it invariably leads to racial profiling which violates the Due Process and Equal Protection Clauses of the Constitution.

One justice who refused to compromise with his fellow justices jumped inappropriately into the political battle in his dissenting opinion. Antonin Scalia personally attacked Obama’s new policy (on not deporting young people brought into the country by their parents), writing:

“The President said at a news conference that the new program is ‘the right thing to do” in light of Congress’ failure to pass the administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing application of the Immigration Act that the president declines to enforce boggles the mind.”

Aside from the impropriety of this cheap shot which led one Washington Post columnist to call for Scalia’s resignation the justice is wrong about Obama refusing to enforce the immigration law. There have been more deportations during the Obama presidency than in any other administration.

But to its credit, Immigration and Customs Enforcement (ICE) has directed its officials to use particular care in considering the cases of veterans, members of the armed forces, long-time lawful permanent residents, minors and elderly individuals, those present in the United States since childhood, pregnant or nursing women, victims of domestic violence and trafficking, individuals who suffer from a serious mental or physical disability, and those with serious health concerns.

After the Court issued its opinion, the Department of Homeland Security (DHS) said it will send a directive to federal agents in Arizona that they must continue to enforce the immigration law consistent with the administration’s priorities, and should not initiate deportation of those who have not committed serious crimes or are not repeat offenders.

DHS also announced it was suspending 287g joint agreements in Arizona. Under these pacts, the federal government had deputized state and local law enforcement officials to detain undocumented immigrants. The program had led to serious civil rights abuses.

Several civil rights and immigrants rights organizations have signed a letter to Janet Napolitano, Secretary of Homeland Security, urging her to terminate the 287g agreements in Alabama, Georgia, Indiana, South Carolina and Utah, the five states that have enacted laws like SB 1070.

The letter also requests that DHS collect data to determine whether state and local police in all six states (including Arizona) are engaged in racial profiling and illegal detentions. This data could be helpful for future lawsuits.

In its opinion, the Court made clear that Arizona police who request an immigration status check from the federal authorities may not extend a detention longer than would normally occur merely because they have not received a response from the federal authorities.

Although the Court struck down three provisions of SB 1070, section 2(b) remains on the books. Instead of gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that leads to the targeting of non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

There is a hopeful sign in California, however, where the legislature recently approved a bill that prevents state police officers from turning over a detained person to federal immigration authorities unless the detainee has been convicted of a felony.

Migrants, no less than U.S. citizens, are entitled to dignity, respect, and human rights. Let us join the voices of compassion and oppose the mean-spirited actions that aim to legalize racial profiling and scapegoat immigrants. Laws like SB 1070 demean us all.

Marjorie Cohn is a professor of law at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Her most recent book is The United States and Torture: Interrogation, Incarceration, and Abuse (NYU Press). See

4 comments for “Immigration, Racism & the Courts

  1. rosemerry
    July 16, 2012 at 16:47

    Dave Francis is the sort of person that makes me despair of the USA ever becoming a civilised country. How can anyone be so meanspirited, cruel, vicious and biased? Has he no idea of the history of his “land of the free”?
    Us of the words “illegal alien criminals”, as well as “smuggling unborn children into this sovereign country”, and the desire to help bring PhDs and other qualified immigrants (ie steal them from the lands who provided their education and brains)while decrying the poor and needy, show the deep prejudice and ignorance of this commenter.
    As far as I am concerned, I could never visit a country which treats citizens, potential citizens, visitors and undocumented workers as criminals.The USA has stolen all the land it “possesses” and is trying to dominate the globe. Not for humanity’s benefit.

  2. Dave Francis
    July 16, 2012 at 14:27

    The deaths caused illegal alien drivers, inebriated or not has caused the town of Milford, Massachusetts and two other towns to sign up for the ICE Mutual Agreement between Government and Employers (IMAGE) program. Employers that sign up for IMAGE agree to: apply E-Verify for new hires; undertake an I-9 form audit to expose illegal aliens currently in the workforce; plus hold training sessions for human resource employees on how to avoid hiring illegal aliens (e.g., on spotting document fraud). Since IMAGE helps extract currently employed illegal aliens, it is considered the best overhaul innovation for maintaining a legal workforce. After illegal-alien drunk drivers slaughtered two citizens a few years ago, Milford officials begin to scrutinize options for reducing illegal immigration. A third death last year forced the town, and local state legislators, into action.

    The state legislators from the area led the charge on enforcement legislation that became law in Massachusetts this week. Each few months counties and cities are learning about the significance of E-Verify and what it would do for the overall populations of their communities. However, salvos of rhetoric and lies have been spread about E-Verify, the Legal Workforce Act (H.R. 2885). But even so E-Verify is spreading –so fast and hundreds of thousands of business entities are now signed up. Of course either sides one way or another are courting the illegal alien invasion, whereas the Republicans to a lesser extent.


    What American citizens must be aware of is the Democratic indifference to non citizens voting in our elections. The Liberal airwaves, including TV and radio broadcast, then especially the media deny this, but the avid reader can observe this for themselves. Just type into any search engine ‘Voter Fraud’ and the truth will be hard to conceal, certainly when Obama before being president, was employed by the notorious ACORN canvassing organization. What went on in its ranks was a serious violation of election laws.

    With both the majority of the Democratic and Republican base failing to enact a mandatory E-Verify law, it’s easy to read between the lines why? Both political parties have been heavily corrupted by either corporate influence or for the Democrats a whole host of adversaries, as large radical minority groups, unions and even the church high echelons. Meanwhile low income Americans are suffering, not excluding teenagers who once looked forward for a part time job as it was in the not so distant past.

    Today we have the Constitutional TEA PARTY, the ‘People’s Party’ who are not just represented by white people as the open border progressives would like you to think. The TEA PARTY is a mix of ordinary decent citizens and green card holders of different skin colors, but with one endearing agenda to rid us of illegal invaders; ObamaCare and everything that qualifies to raise taxes. If you don’t already know anything about Obama’s health care law, the hiring has begun for recruitment. ObamaCare means to recruit least 400.000 enforcement federal officers, which just adds up to the greatest expansion of Washington, that America has ever seen under this Democratic Party.

    Doesn’t matter who is in control of America; either for Obama for another term or his antagonist Mitt Romney? Both must be held accountable by the TEA PARTY.

    Although Obama started his president well in flushing out illegal aliens, the enforcement has slowed to a crawl. Not just to gain points in the ethnic groups by bypassing Congress, undermining the ‘Rule of Law’ but by enacting a loosely effective Dream Act, so that the illegal alien parents should be held accountable for their violating immigration laws, but now the administration is placing a strain on certain sectors of the border, by closing down entry ports. It’s all to do with votes and where the Democrats they are unconcerned who votes, shown by the attitude of the U.S. Attorney General Eric Holder. He is expanding his power by not only enforcing states who are enraged they have to support their population of illegal aliens, but this nasty little man is determined to let non citizens vote. He has attacked the sacred sovereignty of not only Arizona, but Alabama, Georgia and a bunch of others, who cannot sustain the huge financial burden of education, schooling, low income housing, benefits for low income Mothers, cash payments, children’s breakfast and lunch at school, interpreters for bilingual education and a great deal more welfare programs, that foreigners have been allowed to consume; which citizens cannot even touch.

    While you’re working to pay your annual taxes to cover the cost of Obamacare, the IRS will be extorting even more money from you to pay for the free health care of illegal aliens, plus unknown numbers of ‘freeloaders’ and we know there are plenty of them. If Obama gets his way, a person will not even to have some reasonable excuse to gain acceptance for food stamps? Eventually we will turn into another country like Greece and the flow of the money from the government coffers, taxpayers will not be able to contribute enough funds to a least balance our debts.

    Other than the exception of highly paid immigrants holding PhDs ‘s in science, technology, engineering and mathematics (STEM), who should be given expedited preference visas, all others should be deported. America has become a magnet from over 20 million plus foreign nationals, who have ignored our laws and through corporate favors both parties are handing out a million new visas annually than low skilled recipients. Then illegal females have hooked up to a free pass, by smuggling unborn children into this sovereign country. The 14th Amendment has mutated, that originally was for the emancipation of slaves and now used to allow pregnant females to gain a ‘foothold’ into the U.S. This is the inception of the Dream Act of illegal parents bringing unborn babies into America. Once here the female can then receive free health care, education for the child that is costing taxpayers a hundred billion dollars a year. The Birthright Citizenship bill (H.R. 140) sitting in Congress, should be passed—instead its gathering dust in some legislators filing cabinet.


    MANY Governors, Mayors, Police Chiefs and wide web of ‘oath of allegiance’ impersonators, who have signed such ordinances as Sanctuary Cities, allowing the illegal alien criminals to run rampant, because the police are not allowed to question the immigration status. There was ugly death of 3 family members at the bloody hands of a gang member in San Francisco, because of the dire incompetence of the prior Governor and his retinue. Nobody should think the deaths of innocent victims are isolated and very few, as throughout America death drives the highways; illegal alien drivers with no license, no insurance and hardly able to recognize the highway codes. Illegal aliens have been able to turn amok, because the government is badly flawed and remained unconcerned of the disastrous invasion.

    There should be no acceptance of the illegal immigration invaders and the TEA PARTY agenda will have as many leaders they can fit into the seats in the Senate and House of Representatives, to do the bidding of the American People. If you want to see change—REAL CHANGE—in Washington, locate your local chapter of the TEA PARTY. It’s the time to look after our own future, our own people; not other countries problems?

    URGENT NOTICE: Investigation of President Obama’s background history is due to be released by Maricopa County Sheriff Joe Arpaio on July 17, 2012 and could stun everybody. The upcoming press conference is set to be held at 2:30 p.m. local time at the Maricopa County Sheriff’s Office in Phoenix, Arizona, with World Net Daily again providing live streaming video coverage.

    • incontinent reader
      July 17, 2012 at 11:00

      We all are immigrants, or children or descendants of immigrants. Whether one is Irish whose forebears left their native land because of a famine and arrived surreptitiously into this country, or came from Europe or Asia, or the Middle East in the last century seeking refuge from a genocide or holocaust, or for any of an innumerable number of other reasons, this has been a haven to many in the world as inscribed on the Statue of Liberty.

      Dave, I can imagine the Indians in Massachusetts complaining about the callousness, deviousness and cruelty of the Puritans. I can also try to imagine what the Syrians were thinking when they welcomed over 1 million Iraqi refugees on account of a war we started. The Syrians didn’t have the means, but took over the obligation to care for those people and educate their children, while the Bush government abdicated its responsibility and accepted only a few hundred (something our mainstream media conveniently ignores when bashing the Assad government).

      We are suffering in a deep recession so you may feel it all the more, but frankly, these people you complain about pay taxes but don’t get many benefits, precisely because they are undocumented, yet clean your floors and do all the dirty work so don’t have to soil your hands. So, suck it up, pal, and look for a pragmatic and
      workable solution. In keeping with this, a foreign policy that doesn’t exploit and impoverish, but allows the foreign countries we invest in to prosper so that their people don’t have to leave for a place where they and their children can survive, would also help. So far we haven’t done a very good job with any of this.

      • j. smith
        July 19, 2012 at 01:41

        “…a foreign policy that doesn’t exploit and impoverish…” That is the problem with your entire premise on not understanding that ILLEGAL IMMIGRATION is a violation of OUR COUNTRY’s SOVEREIGNTY, our laws, our way of life. There should be NO EXCUSES for foreigners deciding how our laws are to be enforced, formulated or agreed to by politicians who we as voters put into office. I don’t care the “…these people…pay taxes but don’t get any benefits…” Not getting benefits is the small price that they pay for having VIOLATED OUR LAWS! Commenters like you make me sick with your constant effort to justify the actions of people who KNOWINGLY, WILLINGLY, OPENLY defy and violate our borders.

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