65 Stan. L. Rev. Online 1 (2012-2013)

handle is hein.journals/slro65 and id is 1 raw text is: 

                         65 STAN.  L. REv. ONuNE   1
                                 June 18, 2012



                        BROADER VIEW

                           Lucas Guttentag*

    The  Supreme   Court is expected to decide within days whether Arizona's
controversial immigration enforcement  statute, S.B. 1070, is unconstitutional.
Arizona's law is widely condemned   because  of the discrimination the law will
engender.  Yet the Court  appears intent on releqating questions of racial and
ethnic profiling to the back of the bus, as it were. That is because the Supreme
Court is considering only the United States' facial preemption challenge to S.B.
1070  under the Supremacy   Clause. That preemption  claim asserts that Arizo-
na's statute conflicts with the Immigration and Nationality Act's federal en-
forcement  structure and authority.
    But discarding the relevance of discrimination as a component  of that os-
tensibly limited preemption claim expresses the federal interest too narrowly.
State laws targeting noncitizens should also be tested against another funda-
mental federal norm,  namely  the prohibition against state alienage discrimina-
tion that dates back to Reconstruction-era civil rights laws. In other words, the

      * Lucas Guttentag teaches at Yale Law School, where he is Robina Foundation Dis-
tinguished Senior Fellow and Research Scholar in Residence, and at Stanford Law School.
He  is the former founding national director of the ACLU Immigrants' Rights Project. A
short version of the thoughts expressed here appeared in The New Republic online.
      1. In a revealing moment at oral argument, the Chief Justice demanded of the Solici-
tor General before he could offer a single word of argument: No part of your argument has
to do with racial or ethnic profiling, does it? A moment later, Chief Justice Roberts reiterat-
ed, So this is not a case about ethnic profiling. Transcript of Oral Argument at 34, Arizona
v.  United  States, No.  11-182  (U.S.  argued Apr.  25,  2012),  available at
http://www.supremecourt.gpv/oral arguments/argument transcripts/11-182.pdf. For a recent
discussion by a prominent commentator that  [riace is the project of the Roberts court, see
Linda Greenhouse, The Fire Next Term, N.Y. TvIEs OPIMNIONATOR BLOG (May 30, 2012,
9:00 PM), http://opinionator.blogs.nytimes.com/20 12/05/30/the-fire-next-term/ (arguing that
the Chief Justice is intent on undoing the Court's affirmative action and voting rights deci-


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