By Bud Foster - email
"I would say it's a little more interesting than surprising," says U of A law professor Gabriel Chin.
After weeks of protests and demonstrations calling SB 1070's most serious threat racial profiling, when the government filed its challenge to the law, it was never mentioned.
According to Chin, that's because it's a decision the SCOTUS has already made.
"I believe they were unanimous on this point, that Mexican appearance can be used as a factor in immigration enforcement," he says.
The law was approved by the nation's highest court in 1975 in United States v Brignoni-Ponce.
Race can't be the only factor he says, but one of them.
"The 4th Amendment does not apply on the border," says Tucson attorney Armand Salese.
Salese, who has brought racial profiling cases before, says "at the border you can stop anybody. They have the absolute right to do that."
But in a Justice Department briefing, we were told if SB 1070 becomes law and if there are reported cases of potential racial profiling, the civil rights division can take action.
So even though the Justice Department did not take legal action in its filing, it leaves the option open if SB 1070 becomes law.
It also keeps its options open for enforcement along the border.
"In the unique context of immigration, racial considerations are okay according to the US and Arizona Supreme court," Chin says.
And according to Salese, there's the concern what rights local law enforcement will be given if SB 1070 becomes state law.
"If this law passes constitutional muster, then a peace officer would have the right to use race as a factor," he says.
That he says, opens to the door to a lot of problems.
Border Patrol would not comment.
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