Mike Kueber's Blog

December 6, 2014

The Obama administration finally addresses racial profiling

Filed under: Law/justice — Mike Kueber @ 5:44 am
Tags: , ,

Both the Washington Post and New York Times are reporting that the Obama administration is planning to issue rules early next week that further “curb” racial profiling by government agencies, but the biggest focus of the articles seems to be that transportation and border security will be exempted from most of the rules.

I’ve blogged on several occasions about racial profiling and have suggested a similar tack – i.e., common-sense exceptions:

  • 5/25/2010 – “I have been unable to learn if ethnicity can be considered with other factors in deciding that a ‘reasonable suspicion exists’ that a person is in America illegally. I assume, but do not know, that AZ Border and Immigration personnel routinely consider ethnicity when looking for illegal immigrants. The problem seems analogous to looking for terrorists post-9/11, where the target individuals are predominantly from a single ethnicity. If a large majority of illegal immigrants in Arizona are Hispanic, shouldn’t law enforcement be able to consider that as a factor in deciding whether there is reasonable suspicion?”
  • 10/10/10 – “Personally, I think the best course of action is to have a national discussion on what forms of racial and ethnic profiling are acceptable. Liberals argue that all such profiling is illegal, but conservatives respond that political correctness shouldn’t force us to tie the hands of law enforcement when profiling makes them more effective. Alternatively, I think most people would be comfortable with a national ID card. Such a card would not be any more invasive that the periodic census.”
  • 4/26/2012 – “As a practical person, I am reluctant to discard a valuable enforcement tool. The essential question is whether the value of the enforcement tool exceeds the cost to members of the group that will be scrutinized more closely merely because of their skin color. This is an exceedingly complicated, subjective question, and I think the U.S. Supreme Court is supremely qualified to conduct an analysis and render a decision. Unlike the Louisiana judge, however, I will not prejudge their decision and instead will look forward to reading their analysis.”

According to the Post article, Homeland Security was successful in making an argument for common sense:

  • “TSA officials, meanwhile, argued that they should not be covered by the new limits on the grounds that the TSA is not a law enforcement agency.”
  • According to an anonymous immigration official, “If you look at numbers, the vast majority of people we deal with are Hispanic. Is that profiling, or just the fact that most of the people who come into the country happen to be Hispanic? It’s not like you’re a cop on a beat, which is an entirely different situation.”
  • “As a result, entire swaths of DHS activity are exempt from the new policy.”

By contrast, the Times article highlighted that, although the thinking of Homeland Security prevailed, it was not without vigorous opposition by Attorney General Holder:

  • “The debate over racial profiling in immigration enforcement, however, has delayed the release of the new rules for months. Mr. Holder, who was leading the policy review, told colleagues that he believed that border agents did not need to consider race or ethnicity. But the Department of Homeland Security resisted efforts to limit the factors it can consider when looking for illegal immigrants. Department officials argued that it was impractical to ignore nationality when it came to border enforcement. 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.”
  • Under the new rules, agents in those instances will still be allowed to consider race, national origin and other factors that would otherwise be off limits, according to several officials who spoke on condition of anonymity.”
  • “Mr. Holder, the nation’s first black attorney general, has spoken forcefully against racial profiling…. But while law enforcement officials were generally supportive of his efforts to broaden protections for minorities, Mr. Holder ran into objections on the issues of national security and border protection. F.B.I. agents opposed a wholesale ban on considering race and nationality in terrorism investigations. They said, for example, that an agent investigating the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population and, if so, where it is.”
  • “The rules — both the current version and the revisions — offer more protection against discrimination than the Supreme Court has said the Constitution requires. The court has said that border agents may not conduct roving traffic stops simply because motorists appeared to be of Mexican descent, but agents at checkpoints may single out drivers for interviews ‘largely on the basis of apparent Mexican ancestry.’ The court ruled that the government’s interest in protecting the border outweighed the minimal inconvenience to motorists.

It sounds like the Obama administration is taking a sound position on racial and other profiling despite the efforts of Attorney General Holder to go too far in tying the hands Homeland Security.

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