In several important posts, Roger Clegg, who heads the Center for Equal Opportunity, lays out the case (or one of them) against the Arizona immigration law. Comparing the use of race in admissions with immigration-enforcement profiling, he writes:
In both instances, the government is treating people differently because of skin color or what country someone (or someone’s ancestors) came from. Constitutional problems aside — and they are considerable — in an increasingly multiethnic and multiracial society, it is untenable to have a regime that sorts people by race and ethnicity, and treats some better and others worse on that basis. … I have also written that an exception should be made in the terrorism context: Law-enforcement officials are entitled to be cut some slack when they are trying to stop mass murder and win wars. But I have stood by my earlier position that the costs of official racial discrimination are not justified just because the police may think it gives them an edge in fighting street crime.
And it is certainly not justified when the target is suspected not of mass murder, not of dealing drugs, but of nothing more than coming to this country (yes, illegally) to find work and a better way of life for himself and his family.
In short, even if it is constitutional, it is bad policy to use race (or extend such latitude to law-enforcement officers) in matters that don’t involve life and death. Clegg notes that the law was actually amended so that, “on its face at least, it bans racial profiling.” But in practice, there is real concern that race will be the overwhelming factor on which the police rely to identify, stop, and check for proof of citizenship.
To be honest, part of this debate turns on how serious a problem you consider illegal immigration to be. Clegg continues, distinguishing routine immigration enforcement from the war on Islamic jihadists:
The problem of illegal immigration from Mexico is not really that kind of enterprise. It’s troublesome to say the police can identify a Mexican (or Italian, etc.) by appearance, and I’m uneasy letting the government define a problem in narrowly racial terms and then claim that it is entitled to consider race in combating it. This is like a police department saying that it is concerned about black drug dealers (they are the ones selling the drugs in its jurisdiction), and so it will target blacks. But most importantly, all this really goes again to the permissibility of considering race as a matter of law, and doesn’t answer my concerns about the divisiveness of this sort of discrimination as a matter of policy.
Clegg, who is a fearless opponent of racial preferences and quotas, sounds an important warning. Conservatives who chastise liberals for reliance on race to achieve their desired social ends (a more inclusive society, narrowing gaps between rich and poor) should be very wary of supporting race for ends conservatives favor. Opposition to the Arizona law both on this basis and on preemption grounds isn’t, frankly, the politically popular position, as poll after poll has shown. Still, it’s a principled one for those who want to maintain the concept that only in the most dire circumstances should the state classify citizens by race. For those who claim that illegal immigration is just such a problem, I can only respectfully disagree. We have real life-and-death enemies, and the vast number of illegal immigrants don’t fall into that category.