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Commentary By Heather Mac Donald

The Racial-Profiling Smoke Screen

Economics, Economics, Culture Immigration, Race

As each day passes without any abatement in the increasingly surreal hysteria over the Arizona immigration law, the ground for that opposition becomes ever clearer: The real problem with the Arizona law is that it threatens to make immigration enforcement a reality. Every other argument against it is a smoke screen.

The two main lines of attack against SB 1070 — that it is preempted by federal immigration laws and that it will lead to racial profiling — make sense only if you believe that we should not be enforcing our immigration laws.

Putting state resources behind immigration enforcement interferes with federal enforcement only if it is federal policy not to enforce the immigration laws. Without question, more people will be picked up in Arizona for being in the country illegally with SB 1070 than would have been picked up without SB 1070. Arizona has only several hundred ICE agents, and they are are overmatched by the estimated 560,000 illegal aliens in the state. Authorizing the state’s 15,000 police officers and deputies to inquire into suspected illegal aliens’ immigration status during lawful stops acts as a significant force multiplier for ICE.

That is SB 1070’s only effect. Opponents of SB 1070 can argue that a state’s detection of illegal aliens conflicts with federal policy only if it is federal policy that those illegal aliens never be subjected to the immigration laws in the first place. Everything that the Obama administration has said regarding SB 1070, as well as its implementation of the 287(g) and Secure Communities programs, suggests that such lax enforcement is in fact its de facto stance on immigration.

President Obama reiterated the racial-profiling trope in his meeting this Wednesday with Mexico’s president, Felipe Calderón: “We’re examining any implications, especially for civil rights, because in the United States of America, no law-abiding person, be they an American citizen, a legal immigrant, or a visitor or tourist from Mexico, should ever be subject to suspicion simply because of what they look like.”

The Arizona legislature agrees. SB 1070 states that a law-enforcement officer may make an inquiry regarding someone’s immigration status only if he has reasonable suspicion — a longstanding legal concept requiring defensible objective facts — for thinking that the person may be in the country illegally, and only if the officer has stopped or detained that person as part of an independent and lawful police investigation. What someone “looks like” is not a sufficient basis for reasonable suspicion under the law, pace Obama. The most likely trigger for an officer’s immigration inquiry under SB 1070 will be driving without a license or not possessing another form of valid government identification during a lawful stop, having no credible explanation for the lack of identification, and giving answers that suggest possible illegal status. If someone presents a valid ID, any possibility of reasonable suspicion arising is gone.

But let’s be honest: National origin is an inevitable part of immigration enforcement. Foreign alienage is a prerequisite to being an illegal alien; to say that national origin may not be a factor in assessing whether someone may be in the country illegally is to render immigration law nonsensical. If foreign alienage were not a valid consideration regarding border control, incoming passengers on international flights could not be separated into U.S. citizens and non-U.S. citizens for customs clearance. Yet the illegal-alien lobby, in its nuclear assault on the Arizona law, has managed to discredit notice of foreign birth as a factor in immigration enforcement and to fold foreign alienage into the utterly lethal category of “racial profiling.” The original version of SB 1070 said that a “law enforcement official . . . may not solely consider . . . national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.” In the uproar that followed passage of the law, Arizona legislators took out “solely.” It is not clear how this change affects legislative intent or the impact of the law. The Supreme Court has allowed border-patrol agents to use apparent foreign birth as one factor in the initial decision to make a car stop near the border. Lower courts have applied that ruling in cases challenging car stops far from the border as well, allowing apparent foreign alienage to count as one part of reasonable suspicion in initiating a stop, so long as the stop was based on other specific, articulable facts as well. SB 1070 is narrower than those rulings, since it applies only to the development of reasonable suspicion after a stop has already been made. To argue, as the illegal-alien lobby is currently doing, that a local law-enforcement officer may not consider apparent foreign origin in deciding whether to ask someone about hisimmigration status is tantamount to shutting down immigration enforcement entirely.

And let’s be honest about another fact as well: There is a greater chance that a legal-alien Hispanic in Arizona driving without his license could have a question asked of him regarding his immigration status during a stop than a native-born Anglo driving without his license. According to the illegal-alien lobby, that possibility renders the law unconstitutional and a fundamental assault on human rights. But the police may question someone based on reasonable suspicion even if, after the fact, it turns out that the person is not breaking the law. And the minimal intrusion on lawful Hispanics from being asked about theirimmigration status must be balanced against the massive effects on Arizona from the absence of immigration enforcement.

Again, if the possibility that a lawfully resident alien or person of ethnic ancestry may be asked a question about his status is unconstitutional, then we can’t have any immigration enforcement at all. Given the breakdown in border control, immigration enforcement will always have a disparate impact on members of the national origin groups who form the greatest portion of illegal aliens. That is not “racial profiling,” it’s common sense, something that is in short supply surrounding the Arizona law.

This piece originally appeared in National Review Online

This piece originally appeared in National Review Online