Why The Arizona Immigration Law Is Unconstitutional

As a White man, I won't enjoy equal protection under Arizona SB 1070 — I'll enjoy enhanced protection. Super-sized protection. Protection that violates the 14th Amendment. Here's why:

• If I am attacked and beaten in a random act of violence, I won't hesitate to report the crime to the police, because I know that, as a White man, I won't be asked to "show my papers."

• If I'm at a party that gets too loud, the police officer will not demand proof of citizenship from everyone attending. That's because we will all be White and we will be listening to Indie Rock.

• If I'm caught watering my lawn on a "no water" day, I may or may not receive a warning. This is because I'm White, and it will be presumed that I'm the owner of the house, not an illegal day laborer.

I could go on and on with other examples, but hopefully you've gotten the idea.

Here's where things get complicated for non-White U.S. citizens:

Suppose I'm a former professional baseball player from the Dominican Republic (yeah, it's a stretch). I'm a naturalized U.S. citizen, my wife is a naturalized citizen, and my children were born in the United States. We all have very dark complexions, and we are clearly not Caucausian.

While driving through Arizona, we're pulled over for a traffic violation. The officer asks for my driver's license. Whoops, for some reason I don't have it. I actually don't have any identification, and my wife doesn't, either. My English isn't very good. My wife's English is worse. The officer becomes suspicious. Under SB 1070, not only can I be arrested, the officer is obligated to arrest my wife and I. My children will be taken into custody, too.

Would this happen to a white family? Of course not. I've been pulled over on two occasions without my driver's license, and managed to drive away with a smile and a warning.

The Equal Protection Clause of the 14th amendment of the U.S. Constitution ensures that states must guarantee equal application of the law. This is essential to prevent institutionalized racism within a state.

As a White man, I'll be able to move through Arizona freely, above suspicion. My skin is light. I don't speak with a Spanish accent. I get a free pass. Under SB 1070, Latino men won't get the same free pass. How does this reality uphold the principle of Equal Protection under the law?

It's interesting that Arizona legislators didn't pass a bill that would require police to check the immigration status of every single individual, during every single call. This would ensure that Latinos would not be unfairly targeted because of their appearance. But this didn't happen. White Arizonans would never stand for such a law.

The architect of the bill, attorney Kris Kobach, offered a spirited defense in a NY Times Op-Ed piece. But despite his best efforts, vagaries in the language resulted in a hasty re-tooling of the bill, even after it was signed. That's because police officers are expected to make judgments based upon skin color and appearance.
Kris Kobach. It's doubtful he'd be subject to scrutiny under his bill.

Does U.S. immigration policy enforcement need to be urgently addressed? Of course. But this is a bad (and innately racist) law, which swings the barn door wide open to racial profiling, fear and intolerance. It reveals an ugly side of America, but thankfully, I'm confident it won't survive legal challenge.