[to expand on something cited a few days back; originally posted on Slate fray]
A lower court opinion involving illegal transporting aliens in Massachusetts suggests why Arizona SB1070 type laws are controversial: current federal (including constitutional) law allows racial appearance to be judged in certain instances, and bans on "racial profiling" often amounts to "illegitimate racial profiling," not racial profiling across the board. Thus, stringent laws, including those that might not properly take into consideration the needs of innocent parties, are noteworthy. To quote the ruling:
The fact the resulting policy might trouble some is not too surprising, since areas such as these have no simple, painless answers. But, federal discretion in the area does provide the federal government constitutional discretion to set one overriding policy here.*
The specific Supreme Court case discussed by the Slate article concerns what policy the law at issue set in place. Some discussion has been general in scope, which is fine, but just because the federal government can do certain things, it doesn't mean they did. This case specifically is about what a single law says and allows, not federal policy writ large.
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* Sensitive constitutional concerns that do not compel but do counsel a certain policy applies to what happened over the weekend. Many think DADT is unconstitutional. It also is bad policy that touches upon constitutional concerns of inequality and so forth, even if it does not actually violate the Constitution.
It is like a policy regarding fair trials. Fair trials are important enough that merely strictly following what is required (if the exact nature of what that means is even possible to determine) is not a good policy. Like a fence around a home, better safe than sorry, since the underlining matter is so important.
A lower court opinion involving illegal transporting aliens in Massachusetts suggests why Arizona SB1070 type laws are controversial: current federal (including constitutional) law allows racial appearance to be judged in certain instances, and bans on "racial profiling" often amounts to "illegitimate racial profiling," not racial profiling across the board. Thus, stringent laws, including those that might not properly take into consideration the needs of innocent parties, are noteworthy. To quote the ruling:
The thrust of Ramos's argument is that, on the facts stated above, there was no reasonable suspicion justifying the "seizure," the reference to Middle Eastern appearance could not supply the missing ingredient, and any consideration of the fact that Ramos appeared to be "Middle Eastern" was impermissible and tainted the district court's conclusion. We disagree.Such appearance can be judged as a matter of "totality of the circumstances," as part of an overall judgment for Fourth Amendment purposes. [Race can also be taken into account for affirmative action purposes, though some seem to give more concern to that sort of thing.] Thus, it might be the "tipping point" to stopping a certain person or choosing to 'seize' a certain vehicle. Per a 1970s U.S. Supreme Court ruling concerning border control stops:
even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, 16 we perceive no constitutional violationThis should be done carefully, and generally arises in certain special circumstances [but not merely for international flights or border areas alone, the latter involving much more than merely the border itself], but it is again not presumptively barred. This issue has been addressed by experts in the field as well. It underlines the sensitive nature of immigration policy and border control and the federal government has the discretion to take special care to deal with the negative implications of the power the courts (to some extent, probably wrongly) give in this area.
The fact the resulting policy might trouble some is not too surprising, since areas such as these have no simple, painless answers. But, federal discretion in the area does provide the federal government constitutional discretion to set one overriding policy here.*
The specific Supreme Court case discussed by the Slate article concerns what policy the law at issue set in place. Some discussion has been general in scope, which is fine, but just because the federal government can do certain things, it doesn't mean they did. This case specifically is about what a single law says and allows, not federal policy writ large.
---
* Sensitive constitutional concerns that do not compel but do counsel a certain policy applies to what happened over the weekend. Many think DADT is unconstitutional. It also is bad policy that touches upon constitutional concerns of inequality and so forth, even if it does not actually violate the Constitution.
It is like a policy regarding fair trials. Fair trials are important enough that merely strictly following what is required (if the exact nature of what that means is even possible to determine) is not a good policy. Like a fence around a home, better safe than sorry, since the underlining matter is so important.