By Bill Ong Hing, Professor of Law, University of San Francisco | Source: HuffingtonPost.com

In the Obama administration's challenge to Arizona's anti-immigrant SB 1070, Department of Justice lawyers avoided arguing that any of the law's provisions, including the requirement that state police check the documents of suspected undocumented immigrants, invite racial profiling. In fact, at the Supreme Court on Wednesday, Chief Justice John Roberts began the case by greeting the Solicitor General Donald Verrilli (and the rest of the country) with: "No part of your argument has to do with racial or ethnic profiling, does it?" To which the lawyer responded, "We're not making any allegation about racial or ethnic profiling in this case." Later when Verrilli tried to make a point about Arizona Latinos who would be affected by the law, he backed away from the point after Justice Antonin Scalia complained that it sounded like racial profiling.

The technocrat lawyer in me might understand this strategy, reasoning that it's too soon to know if Latinos will be targeted by SB 1070 (although there's plenty of evidence already). The cynic in me believes that the Obama administration stayed away from racial profiling allegations because that claim falls too close to home. The framework for SB 1070 mirrors the federal immigration enforcement laws and guess what, ICE engages in racial profiling every day. The immigration historian in me, however, understands that SB 1070 is in fact all about racial profiling given the institutionalized racism under which the law and its copycat statutes across the country have emerged.

The southwest border essentially became an open border in 1848, when the United States forced Mexico to sign the Treaty of Guadalupe Hidalgo. The United States gained California and New Mexico (including present-day Nevada, Utah, and Arizona) and recognition of the Rio Grande as the southern boundary of Texas. The treaty gave all Mexicans living in the ceded territory the option of becoming U.S. citizens or relocating within Mexican borders. In the years immediately following the treaty, many Mexicans thought of the territories as part of Mexico. Mexicans and Americans paid little heed to the newly created international border, which was unmarked and wholly unreal to most.

In 1942, the United States negotiated a treaty with Mexico known as the Bracero Program, providing for the use of Mexicans as temporary workers in U.S. agriculture. With the exception of slavery, in terms of servicing U.S. economic interests, the program was a historical first. The Bracero Program was renewed consecutively throughout the administrations of five U.S. presidents. Braceros constituted a quarter of the farm labor force in California, Arizona, New Mexico, and Texas, contributing to U.S. dominance in agriculture. In spite of the program, undocumented Mexican migration was significant during this era. In 1954, more than 1 million undocumented Mexicans were deported as part of an initiative dubbed "Operation Wetback."

As organized labor and public sentiment toward undocumented Mexican workers became increasingly negative in the 1970s, resources for border enforcement were enhanced, and the Border Patrol's primary task became patrolling the southern border. By the mid-1990s, 85 percent of the Border Patrol's agents were stationed along the Mexican border.

While the rest of the world enjoyed an expansion of numerical limitations after 1965, Mexico and the Western Hemisphere were suddenly faced with numerical limitations. The Western Hemisphere was allotted a total of 120,000 immigrant visas each year. By 1976, the process resulted in a severe backlog of approximately three years and a waiting list with nearly 300,000 names. As the immigration of Mexicans became the focus of more debate, Congress enacted legislation in 1976 further curtailing Mexican migration. The law imposed a preference system on Mexico and the Western Hemisphere along with a 20,000 visa per country numerical limitation. Thus, Mexico's annual visa usage rate, which had been about 40,000, was virtually cut in half overnight.

As the immigration enforcement budget grew larger and larger during the 1970s and 1980s, the Supreme Court, swayed by arguments that the undocumented alien problem was worsening, gave more flexibility to federal enforcement strategies. In 1975, the Supreme Court opened the door to stops by roving patrols near the border in United States v. Brignoni-Ponce (1975). The next year, the Court carved out a major exception to the Fourth Amendment's protection against search and seizure to further accommodate the Border Patrol. The case, United States v. Martinez-Fuerte (1976), endorsed the legality of fixed checkpoints away from the border even when stops are not based on articulable suspicion. Less than a decade later, the Supreme Court, in INS v. Lopez-Mendoza (1984), made it clear that the Fourth Amendment's protection against illegal search and seizure was not available to aliens fighting deportation even if federal officials acted illegally.

In essence, the immigration visa system does not accommodate the demand for visas from Mexico, and the enforcement regime has been given license to operate quite broadly. Undocumented immigrants have been demonized, and through the demonization, they become a faceless commodity. The immigration admission and enforcement systems -- including the new SB 1070-like laws -- may appear neutral on their face, but (1) they have evolved in a racialized manner and (2) when the immigration framework interacts with other racialized institutions you realize that the structure generates racial group disparities as well. NAFTA and globalization form a big part of why many migrants of color cannot remain in their native countries. The criminal justice system and poverty prey heavily on poor communities of color, leading to deportable offenses if defendants are not U.S. citizens.

The Supreme Court and federal litigators may not want to admit that SB 1070 is about racial profiling, but they are in denial. The seemingly neutral logic that flows from an institutionally racist immigration system need not carry the day. We should not be left to object to anti-immigrant state laws, ICE raids, border enforcement, and even criminal alien enforcement solely in non-racial terms. Understanding these operations from an institutionalized racial perspective provide another basis for arguing that our system of immigration laws and enforcement policies must be overhauled in order to address the menacing vestiges of racism within that system.

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