Immigration Law

Think Racial Profiling Is Unconstitutional? Read Brignoni-Ponce, Law Profs Say

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Those who think the racial profiling encouraged in Arizona’s new immigration law is unconstitutional should think again, two law professors say.

A 1975 U.S. Supreme Court decision, United States v. Brignoni-Ponce, approved the kind of racial profiling contemplated by Arizona’s new immigration law, according to law professors Gabriel Chin and Kevin Johnson. That doesn’t mean they like the decision; writing at the Washington Post they say it has been “out of the constitutional mainstream” since it was decided.

Chin is a professor at the University of Arizona Rogers College of Law and Johnson a professor at the University of California Davis School of Law. The Arizona law requires police to seek proof of a person’s immigration status if they have a reasonable suspicion the person is in the country illegally.

At issue in Brignoni-Ponce was whether the Border Patrol had the power to stop vehicles near the Mexican border and question the occupants about their immigration status. The court ruled that the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”

Arizona lawmakers apparently took note of the Supreme Court case, the law professors say, when they wrote the law to say police may not consider race, color or national origin in implementing the law, except to the extent permitted by the U.S. or Arizona constitution.

The federal government’s challenge to the law focuses on a different argument: that the state’s law is pre-empted by federal immigration law. The professors say that claim is likely to prevail.

Another expert, Temple law professor Peter Spero, isn’t so sure. He told the Wall Street Journal Law Blog that the challenge is “not a slam dunk for the federal government.”

Asked what section of the Constitution governs immigration, he said there is no express mention. “It’s interesting; nothing in the Constitution says anything about immigration,” Spero told the Law Blog. “But it goes back to the late 19th century, in which the power became vested in the general foreign affairs power. Part of the theory is that if you have a state offending a foreign country, it could lead to serious diplomatic disputes.”

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