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'Papers, Please' was never post-racial

The word "draconian," meaning "excessively harsh and severe," has applied to many a law prior to SB 1070.
By Jamil Smith, Jamil Smith

The word "draconian," meaning "excessively harsh and severe," has applied to many a law prior to SB 1070. That said, considering how many times it's been applied to the Arizona anti-immigration law and its legislative siblings throughout the nation, I wouldn't be shocked if the entire phrase "draconian anti-immigration law" ended up in dictionaries, a rhetorical artifact of this strange political moment. Yesterday, we saw that "draconian" also applies to the way in Supreme Court Chief Justice John Roberts began the oral arguments about the "Papers, Please" law.

Adam Serwer filed a report in Mother Jones Wednesday morning which was partially headlined, "A Dispatch from Foxnewsistan." Per Serwer, before the United States Solicitor General even spoke a word, Chief Justice John Roberts laid down an astonishing ground rule. Honestly, my mouth dropped when I read this:

"I just want to make clear what this law is not about," Roberts said. "No part of your argument has to do with racial or ethnic profiling, does it?"

Reading him literally, let's try to see where the Chief Justice was coming from. What's at issue in the Supreme Court are the four provisions of the law, signed into law nearly two years ago to the day, which the Ninth Circuit Court of Appeals prevented from taking effect :

  • A provision compelling police to question the immigration status of individuals they suspect are undocumented
  • A provision allowing police to arrest such individuals without a warrant
  • A provision making it a state crime to work without authorization
  • A provision making it a state crime for immigrants to walk around without their federal papers

That last part makes Roberts' statement rather incredible. How can you tell who is and who isn't an immigrant? How is a law enforcement supposed to, well, enforce this law without making certain assumptions about a person's appearance that gives them probable cause to suspect one is an undocumented immigrant, walking around without her or his federal papers?

Unless Roberts has a Spidey Sense for detecting them (and expects Arizona law enforcement to share that supernatural ability), racial and ethnic profiling is precisely what the "papers, please" law is about. It literally is part of the law itself. We can talk about the problem that SB 1070 is allegedly supposed to address. But in order to deal with that problem -- undocumented immigration -- the method the law employs is legalized racial profiling, done under the auspices of enforcing immigration law.

(And it seems that it was enforced, in the case of David de la Fuente, with lethal consequences. Instances of brutality towards undocumented immigrants is nothing new, as these PBS and Democracy Now! reports can attest; still, laws like SB 1070 may be making things worse.)

With that, it's no surprise that initial reports from NBC News and others indicated that the justices appeared ready to uphold those provisions; with Justice Elena Kagan having recused herself, the job of the conservative justices to preserve "Papers, Please" is even easier than it is to strike down the Affordable Care Act. (Both decisions are due in June.)

Justice Antonin Scalia reducing himself to comparing undocumented immigrants to bank robbers, and otherwise sounding like a Republican House member or Fox News contributor; that we expect by now. The Chief Justice defusing part of the government's case against SB 1070 with racial denialism, before it even had the chance to begin? That's considerably more disappointing.

Postscript: Dahlia Lithwick of Slate has a good write-up about the Supreme Court's disingenuous color-blindness:

The Pew Hispanic Center released a report this week that found that as of now Mexican immigration to the United States has all but dried up. That fact was not in evidence in the court today, as Kennedy painted a graphic picture in which “the state of Arizona has a massive emergency with social disruption, economic disruption, residents leaving the state because of a flood of immigrants,” and Clement ended the day with dire warnings of murderous illegal El Salvadorans who shoot cops during routine traffic stops. How funny that we can talk about these fears, even after we’ve all stipulated that this law has nothing to do with race.

What else is on our radar this morning? Take a look below the jump.