SB 1070: Why Obama Is Partly to Blame for the Racist Bill

Listening to the oral arguments before the U.S. Supreme Court on Arizona's breathing-while-brown law, Senate Bill 1070, prompted a daydream.

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• U.S. Immigration and Customs Enforcement
• Sonia Sotomayor
• Antonin Scalia
• Social Policy
• Politics

Justices Sonia Sotomayor and Antonin Scalia are in a battered pickup truck with garden tools visible in the back. Set in the midst of Sheriff Joe Arpaio country — as if in an old Twilight Zone episode — the pair are wearing ragged work clothes stained with sweat and dirt.

Naturally, the truck has a broken taillight.

Sirens flash, the truck is pulled over by one of the MCSO's not-so-finest, and Scalia, who is driving, is asked for his license. He feels his back pocket. Whoops, his wallet isn't there. Must've slipped out at the fillin' station.

In the dream, Section 2(b) of SB 1070 is in effect, the injunction placed on it in 2010 by federal Judge Susan R. Bolton (one upheld by the Ninth U.S. Circuit Court of Appeals), having been lifted by Scalia, Sotomayor, and other justices.

Section 2(b) requires Arizona cops to check a detainee's immigration status during any "lawful stop, detention, or arrest" if they develop reasonable suspicion that the individual is in the country illegally.

As Sotomayor has no ID on her, either, the deputy suddenly develops reasonable suspicion that Sotomayor, who is Hispanic, and Scalia, who is of Italian descent, are undocumented. He calls in their names to U.S. Immigration and Customs Enforcement.

After about a half-hour of checking, ICE calls back. Status undetermined. ICE asks the deputy to take them to ICE's Phoenix office for intense questioning. The deputy complies, and the pair are kept in confinement over the weekend, until one ICE agent finally figures out they're Supreme Court justices and cuts them loose.

Like I say, it's a daydream. But since, during oral argument, the Supremes apparently thought it was no big deal for Arizona to have its own enforcement scheme for the application of civil immigration law, it would be nice to apply a little justice to the justices, if only in fantasy.

If they were so inconvenienced, would Scalia and Sotomayor be so cavalier with the concept of Arizona's adopting an "attrition through enforcement" immigration strategy?

Not that I'm inclined to let their fellow justices off the hook — at least not the conservative ones. Give them a deep brown tan, run them through the same process, and watch 'em squeal. (Clarence Thomas can go as is, natch.)

My thirst for revenge may seem premature. The court hasn't ruled on whether federal immigration law preempts state enforcement efforts, though it will by the end of June.

However, judging by the Supremes' questions and statements during the orals, it's easy to see why nativist politicians practically were dancing jigs after the arguments were done.

"Are you objecting to harassing the people who have no business being here?" Scalia asked U.S. Solicitor General Donald B. Verrilli at one point.

"Surely, you're not concerned about harassing them," Scalia continued. "They have been stopped anyway, and all you're doing is calling up [ICE] to see if they were illegal immigrants or not."

See, the protests, the boycotts, the civil disobedience, and the fear and anxiety in the Latino community fomented by SB 1070 are no big deal to Scalia. This teapot tempest boils down to one thing: a simple phone call.

Many commentators observed that Sotomayor, a Latina, was not sympathetic to Verrilli's arguments, telling the solicitor general that "it's not selling very well" and suggesting, mockingly, that he try a different tack.

"It's not that [SB 1070 is] forcing you to change your enforcement priorities," she told Verrilli. "You don't have to take the person into custody."

Latina she may be, but she also is of Puerto Rican descent. Her predecessors did not cross the Sonoran Desert to settle in this country. Though, that would not stop her from being profiled in Sand Land under the rule of 1070.

But 1070 has nothing to do with racial profiling, right? As was mentioned several times by the justices and the lawyers before them, the federal government is challenging Arizona's statute on the narrow grounds of federal preemption of state law.

Other possible constitutional issues — violations of the 14th and Fourth amendments, for instance — were not in play.

That's too bad. Because when Chief Justice John Roberts asked Verrilli, "So this is not a case about ethnic profiling?" you wanted to scream, "Hell, yes, it is!"

Verrilli had to agree with Roberts. Profiling was not the grounds on which the government is challenging 1070.

Even if the Supremes give us a mixed decision (as is likely) with the injunction on 2(b) lifted, there is a ray of hope, as I suggested in a blog item on the day of the arguments.

The ACLU and other civil rights organizations are challenging 1070 in a separate suit on the grounds that it violates the Fourth Amendment's prohibition on unreasonable searches and seizures, as well as on other constitutional grounds.

That case, Friendly House v. Whiting, also is before Judge Bolton. And the plaintiffs already have asked for an injunction against 1070 on Fourth Amendment grounds.

Bolton denied the motion, but only because she already had enjoined the same troubling parts of 1070 in United States v. Arizona. However, she signaled that she believed there were Fourth Amendment problems with the law.