The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After a lengthy review of racial and ethnic profiling in federal law enforcement policy, the Obama administration has decided to allow the practice to continue in immigration law enforcement:
The Obama administration will soon issue new rules curtailing the use of profiling, but federal agents will still be allowed to consider race and ethnicity when stopping people at airports, border crossings and immigration checkpoints, according to several government officials.
The new policy has been in the works for years and will replace decade-old rules that banned racial profiling for federal law enforcement, but with specific exemptions for national security and border investigations. Immigration enforcement has proved to be the most controversial aspect of the Obama administration's revisions, and law enforcement officials succeeded in arguing that they should have more leeway in deciding whom to stop and question.
I. The Enormous Scope of Racial and Ethnic Profiling in Immigration Enforcement.
As the New York Times notes in the above-linked article, federal officials are permitted to use racial profiling in areas far beyond the border, as that term is understood by laypeople:
Federal agents have jurisdiction to enforce immigration laws within 100 miles of the borders, including the coastlines, an area that includes roughly a third of the United States, and nearly two-thirds of its population. Federal agents board buses and Amtrak trains in upstate New York, questioning passengers about their citizenship and detaining people who cannot produce immigration papers. Border Patrol agents also run inland checkpoints looking for illegal immigrants. Senator Richard J. Durbin, Democrat of Illinois, has called the existing rules "a license to profile."
The areas in question have large Hispanic and Asian-American populations, and therefore large numbers of people likely to be victimized by racial profiling of the sort that the Obama administration has decided to continue.
II. Why Conservative Advocates of Color-blind Government Should Oppose Racial Profiling in Law Enforcement.
This decision is likely to disappoint liberal opponents of racial profiling. The president could easily forbid racial profiling in federal immigration enforcement by issuing an executive order banning it. If anything is within the scope of executive discretion in law enforcement, it is the tactics used by federal law enforcement agencies. Yet he has chosen not to do so. In fairness, he is, in this case, continuing practices that predate his administration. But the fact that previous administrations did the same thing is a poor excuse for an administration that prides itself on promoting racial justice and a president who promised to bring "change we can believe in."
The perpetuation of racial profiling in immigration enforcement should also trouble conservative advocates of racial color-blindess by government. If they truly believe, as Chief Justice John Roberts puts it, that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," they cannot allow a giant exception to this principle when it comes to law enforcement, whether in immigration law or elsewhere.
As I explained here and here, most of the reasons conservatives cite for opposing racial preferences in college admissions also apply to the use of racial profiling in law enforcement. In both cases, government uses race as a tool for economizing on information costs.
Conservative defenders of racial and ethnic profiling argue that it is justified because members of some racial and ethnic groups have much higher crime rates than others, and in a world of imperfect information, government should target enforcement efforts on those groups. A Hispanic-looking person in a border area is much more likely to be an illegal immigrant than, say, a white Anglo-Saxon. If federal officials had perfect information about each person they encounter, they would not need to use race as a proxy. But unfortunately, they don't. But defenders of racial preferences in admissions can make exactly the same type of argument. An African-American applicant is, on average, more likely to have been the victim of racial discrimination than a white one. Similarly, members of some racial and ethnic groups are more likely to contribute to diversity than others. If we had perfect information about each applicant, admissions officers would not need to use race as a proxy. But unfortunately they don't.
Conservatives rightly reject these sorts of rationales in the college admissions context. They point out that the use of even statistically accurate racial generalizations by government still inflicts injustices on innocent individuals and exacerbates racial conflict. They also emphasize that once racial discrimination becomes institutionalized, it is difficult to limit its scope. But exactly the same points apply to the use of racial discrimination in law enforcement. It too inevitably victimizes large numbers of innocent people, exacerbates racial tensions, and tends to expand once established.
In recent years, some conservatives have begun to recognize the tension between opposition to affirmative action and support for racial profiling, and have become more critical of the latter. My George Mason colleague Nelson Lund, a prominent conservative legal scholar, was among the first conservative commentators to do so.
Some conservatives, such as Jonah Goldberg nonetheless continue to argue that racial profiling is more defensible than affirmative action because it inflicts only minor harms on its victims, whereas racial preferences in college admissions inflict much greater damage, perhaps even a "lifetime loss" for students unable to attend their preferred college. This theory is flawed for reasons I outlined here:
Whether affirmative action causes more harm to its victims than racial profiling varies from case to case. In some situations, getting stopped by the police will be a "lifetime loss" too, especially if nervousness or overreaction by either side causes a misunderstanding that escalates into violence. In other cases, it could result in your being detained for hours even if you are never charged with any crime (especially if the officer thinks you haven't demonstrated the proper "respect" for his authority). The fear that racial profiling engenders among lower-class blacks and Hispanics (including those who never actually get profiled themselves) is also a significant cost.
White and Asian victims of affirmative action sometimes do suffer great losses… In many cases, however, they simply end up attending universities comparable to or only slightly less prestigious than those that rejected them. As with racial profiling, the magnitude of the loss varies widely from case to case.
I would add that the perpetuation of racial profiling also poisons relations between law enforcement and minority communities. If Hispanic immigrants believe that the government is treating them as second-class citizens—a perception likely to be reinforced by widespread racial profiling—that is likely to impede their assimilation and increase ethnic hostility. These too are significant potential harms that go beyond the often modest short term inconveniences of being stopped by law enforcement officials.
III. What if Racial Discrimination is the Only Way to Enforce Our Current System of Immigration Restrictions?
The New York Times article reports that the Obama administration ultimately decided to allow racial profiling in immigration enforcement to continue because the Department of Homeland Security claimed that immigration restrictions can't be enforced without it:
"The immigration investigators have said, 'We can't do our job without taking ethnicity into account. We are very dependent on that,' " said one official briefed on the new rules. "They want to have the least amount of restrictions holding them back."
If it really is true that current immigration restrictions can't be enforced without large-scale racial and ethnic discrimination, that is a massive strike against them. It highlights the extent to which such policies unjustly victimize not only would-be immigrants, but also legal residents and American citizens.
I recognize that there might be extreme cases where racial and ethnic discrimination by government is the only way to prevent some great evil that cannot be forestalled otherwise. If, hypothetically, racial profiling were the only way to prevent an imminent nuclear terrorist attack that will kill millions, it could well be justified in such a case. But even if we aren't willing to say that the government should never be allowed to engage in racial discrimination for any reason, there should at least be a very strong presumption against such policies. I am skeptical that the supposed need to deport more immigrants, most of whom merely seek to escape Third World poverty and oppression, even comes close to overcoming that presumption. If racial discrimination really is essential to the enforcement of current immigration law, that's not a justification for racial profiling, but a justification for liberalizing immigration law.