Listening to the oral arguments before the U.S. Supreme Court on Arizona's breathing-while-brown law, Senate Bill 1070, prompted a daydream.
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.
The ACLU has suggested it will ask again for a Fourth Amendment injunction if the Supremes lift the earlier one. Whether this will work relies on what the justices decide. It's possible their ruling will make it harder for the ACLU to get a Fourth Amendment injunction from Bolton.
Gone are the days when we could count on the U.S. Supreme Court and the federal government to ensure that civil rights remain inviolate. Sadly, that concept seems as outdated as pet rocks and lava lamps.
Nor can we rely on the feds to descend on Arizona like paratroopers on D-Day and save us from the authoritarian excesses of Sheriff Joe, or an Arizona GOP hellbent on keeping the brown down for as long as possible.
Nevertheless, after last week's oral arguments, folks on the left played the blame game, since the federal government's side took a serious beating.
Some blamed Verrilli, and some blamed the high court. Others took aim at easier targets, like the bigots who gave birth to the statute — Kansas Secretary of State Kris Kobach and recalled Arizona Senate President Russell Pearce.
However, I'd posit that there are two bad players in this madness. Foremost being President Barack Obama.
Why didn't the feds pursue a Fourth Amendment claim against 1070? Or a 14th Amendment claim involving racial profiling?
In part, because the feds are themselves often guilty of the same civil rights violations they accuse others of committing. It doesn't take an extensive Google search to find examples of U.S. citizens caught up in ICE's immigration dragnet, for example.
Going through a U.S. Border Patrol checkpoint in Arizona is instructive. If you're Anglo, you'll be waved through without a second glance. Latinos, whether citizens or not, can expect a delay, to say the least.
It's not just in Arizona. The ACLU recently filed a class-action lawsuit in Washington state, of all places, against the Border Patrol, alleging a pattern and practice of discriminatory policing.
Seems there's little for bored Border Patrol agents to do near the Canadian border, so they stop Hispanics continually. The case includes examples of two Latino citizens, each of whom was stopped and questioned on more than one occasion.
I know what the Dems out there are thinking. But, no, the Obama administration doesn't get a pass because the policies that have led to such profiling started in the previous administration.
Indeed, with former Arizona Governor Janet Napolitano at the helm of the U.S. Department of Homeland Security, programs utilizing local cops as "force multipliers" in immigration enforcement, such as the 287(g) program and Secure Communities, have expanded, allowing Obama to deport more illegal immigrants in three years than George W. Bush did during his eight years as president. (Note: 287(g) is now being phased out in favor of S-Comm.)
Who gave Arpaio the largest force of 287(g)-trained officers in the country, empowered to enforce immigration law? Dubya. Who let Arpaio abuse that authority in the field through most of 2009 and in the jails up until late last year? Obama.
Moreover, how do you go to the court and argue that the feds own immigration enforcement, when DHS has been handing out the same authority willy-nilly with a program like Secure Communities, in which even those nabbed with piddling offenses are jacked up on immigration holds and deported?
"The federal government doesn't like [SB 1070]," Verrilli's foil, Paul Clement, correctly told the high court. "But they are very proud of their Secure Communities program . . . [which] makes clear that everybody's who's booked at participating facilities . . . eventually has their immigration status checked."
Verrilli contended that the states need a permission slip from the feds to enforce immigration law. A less-convincing line of reasoning is difficult to imagine.
Right out of the gate, Obama hired the Democratic governor of a viciously red state to be his DHS honcho, setting up a line of dominos that inevitably fell, resulting in a Republican governor signing 1070 into law.
Then, his administration doubled down on interior enforcement and the militarization of the border while assuring Latinos that Democrats would get around to comprehensive immigration reform one of these days.
Sure it will . . . When the Dems owned both houses of Congress, they punked out on comprehensive immigration reform. The Ds couldn't even make a moderate, broadly supported proposal like the DREAM Act a reality.
This time around, Obama's strategy is to demonize the easily demonizable GOP as a collection of Ku Klux Klan-wanna-bes and assure Hispanics, as he did in 2008, that he'll make comprehensive reform happen.
That seemed like a winning strategy until Republican U.S. Senator and vice presidential hopeful Marco Rubio began talking about a GOP-sponsored version of the DREAM Act.
Rubio's giving Obama some heartburn and may make the president compete for the Latino vote in November. This demonstrates that, as I argued in last week's column, the end of Mexican-hating policies in Arizona and the nation ultimately will be achieved via political means.
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I'm not dissing the feds entirely. I'm happy they sought a 1070 injunction from Bolton on the grounds of preemption. "States rights" is code for institutionalized racism, from slavery up to and including Russell Pearce, and it must be opposed.
Also, Bolton's injunction bought us time in Arizona to change things. And as Pearce certainly knows, the times they are a-changin'.
The second bad player in 1070's rise has been Arizona. Its residents are the ones who must end, through the ballot box, the ugliness of anti-Mexican nativism in this state.
And as the Supreme Court seems inclined to lift the injunction on 2(b), 2012 must be the year we stomp that ugliness into the sand.