Dan, I’d add one other point to your fine post. It is not just all laws that are “potentially discriminatory.” All policing is potentially discriminatory. Police make arrests without judicial arrest-warrants all the time if they believe they have witnessed a violation of law. They conduct searches all the time without judicial search-warrants if, in their judgment, the facts they observe amount to one of the recognized exceptions to the warrant requirement. And, as we’ve pointed out repeated, they do not have to have any reason at all to ask questions — including to ask a person for identification or immigration status. Muehler v. Mena (2005) (“the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status”) (emphasis added). All these activities are potentially discriminatory, but we rightly trust the police to carry out their duties in good faith — because in our experience that’s exactly what they do, and because we have means at our disposal to deal with the few who don’t.
It makes no sense, except as an exercise in pandering, to criticize a law because it can potentially be abused. Should we, for example, shut down the legislative process because Congress could potentially abuse its power by, say, hiding the occasional hundred billion or two in spending? And this administration is in no position to be suggesting potentially discriminatory enforcement of the immigration laws on the part of Arizona’s police when the Obama Justice Department is currently engaging in actually discriminatory enforcement of the voting rights laws in the New Black Panthers case.