It was 116 years ago that Justice Harlan announced in an infamous (and at times controversial) dissent that the Constitution is colorblind. Harlan’s dissent has been credited by more than one scholar with laying the groundwork for the unanimous decision in Brown v. Board of Education. And yet, despite this apparent triumph of racial equality, the average American would probably be surprised to learn that the modern Constitution does in fact “[know and tolerate] classes among its citizens” on the basis of race. It does so not merely by practical effect or implication: it does so expressly under the precedents of the Supreme Court.
The average American should be made aware of what many in the academy have known for a long time: that the Supreme Court has, on several prominent occasions, expressly blessed the use of race as a constitutionally permissible basis on which to enforce the laws of the nation. While much work has been done in recent years identifying the way in which the Court’s “color-blind” jurisprudence has created massive racial disparities in the administration and enforcement of the nation’s laws, I am not here dealing with that arm of the Court’s jurisprudence. I speak here of a smaller group of cases in which the Supreme Court has expressly stated that it’s ok for government officials to enforce the law on the basis of race. These precedents have caused unintended legal consequences in the administration and enforcement of state laws, many of which incorporate constitutional standards into their provisions by reference. We can see this demonstrated by recent immigration laws in states like Alabama, which will be discussed in more detail later in this essay. First, we must address the two most prominent cases in which the Court expressly blessed the use of race in the enforcement of the nation’s laws. Then we can examine how those cases affect the administration and enforcement of laws at the state level—specifically in the immigration context.
United States v. Brignoni-Ponce
In 1975, the Court decided United States v. Brigoni-Ponce. This case involved a border patrol traffic stop in which the officers stopped the respondent’s car near a police checkpoint that was set up for vehicles traveling northbound from the Mexican border. The officers in this case admitted that the only reason they stopped the respondent’s car was because the occupants of the car appeared to be of Mexican descent. All three of the occupants of the car were arrested after the officers questioned the occupants about their citizenship and learned that the passengers were aliens who had entered the country illegally.  The respondent was charged with two counts of knowingly transporting illegal immigrants in violation of section 274(a)(2) of the Immigration and Nationality Act [hereinafter INA]. The Respondent attempted to have the statements of the passengers suppressed on the basis that the seizure of his vehicle was unconstitutional.  The trial court denied respondent’s motion to suppress, and he was later convicted at trial of both counts charged under the INA. On appeal, the Supreme Court held that, while border patrol agents cannot rely solely on the race of the occupants as a source of reasonable suspicion, agents can nonetheless consider the race of citizens as one relevant factor among several when deciding whether they have reasonable suspicion to stop a vehicle.
While this holding may not seem as insidious as it otherwise could be—it does, after all, reject outright racial profiling—the practical effect of this ruling is to create a certain sphere of activity in which police can constitutionally stop a person who appears Mexican, but can’t constitutionally stop a member of any other race. We could have a situation, for example, in which an anonymous informant tells police that many smugglers are starting to traffick non-citizens across the border using only white vehicles. The anonymous tip, for reasons explained below, will usually be insufficient to justify a stop. But paired with a driver’s “Mexican appearance,” reasonable suspicion begins to emerge. To understand why this is so, a brief explanation is in order. In 1968, the Supreme Court decided in Terry v. Ohiothat police may conduct brief investigatory stops where they have a “reasonable, articulable suspicion” that criminal activity is afoot. The “reasonable suspicion” standard is “less demanding” than probable cause, which was the standard for government searches and seizures prior to Terry. Notwithstanding the Terry decision, the Supreme Court nonetheless remained skeptical with respect to anonymous informants, applying a 2-step “reliability” test—developed over two cases spanning five years apart—to determine whether tips from confidential or anonymous informants established probable cause. The so-called Aguilar-Spinelli test was abandoned in 1983, when the Court decided that judicial analysis of the reliability of informants should take into account the “totality of the circumstances,” rather than applying the rigid, bifurcated two-prong analysis which defined the Aguilar-Spinelli test. Later, in 2000, the Court stated that reasonable suspicion requires a “minimal level of objective justification,” and found that reasonable suspicion existed where a person ran from police officers while standing in a high crime area. This created the infamous “flight + high-crime area = reasonable suspicion” equation that has generated much controversy in the legal world.
When one synthesizes these precedents with Brignoni-Ponce, a disturbing picture emerges: imagine again that a border patrol agents received an anonymous tip that many smugglers are starting to transport non-citizens across the border exclusively in white vehicles. A mere anonymous tip alone is unlikely to justify reasonable suspicion. But when the anonymous tip is paired with Mexican appearance, a stronger case begins to appear. Now consider that the Mexican border is arguably its own “high-crime area”—indeed, Brignoni-Ponce Court was quick to point out that the vast majority of documented cases of unlawful entries by non-citizens occur on the Mexican border. And while illegal entries are down in recent years the Mexican border remains a hotbed of criminally culpable activity. The existence of a high crime area paired with fleeing from the police was enough to establish reasonable suspicion in Wardlow. The only difference in the present case is that, instead of flight, we have the Mexican appearance of the driver, which can be used to establish reasonable suspicion under Brignoni-Ponce. So in our imagined situation, we now have (1) a “high crime area,” (2) the driver’s Mexican appearance, and (3) an anonymous tip about white cars being used for smuggling. The combination of these three factors could easily establish the “minimal level of objective justification” necessary to justify seizing a vehicle driven by a person of Mexican descent, while not necessarily justifying the seizure of a vehicle driven by a member of any other racial group.
Whren v. United States
In addition to Brignoni-Ponce, the Court also blessed the use of race in law enforcement decisions in Whren v. United States. Whren involved a traffic stop of two Black citizens in the District of Columbia. Plainclothes police officers pulled over an SUV after they failed to use a turn signal and traveled at an “unreasonable speed” when pulling away from an intersection. The officers’ suspicion had earlier been aroused when they saw the truck had remained stopped at the intersection for an unusually long time. When they approached the vehicle, the officers allegedly discovered one of the petitioners with two large plastic bags of “what appeared to be crack cocaine” in his hands. The defendants were arrested and charged with violating various federal drug laws. The petitioners challenged the legality of the stop at a suppression hearing, arguing that the stop was pre-textual, and that the officers were using the traffic violation as an excuse to conduct a search for evidence of drug crime—a search for which they had neither probable cause nor reasonable suspicion prior to stopping the vehicle. Petitioners’ argument was rejected, and both were convicted. On certiorari to the Supreme Court, the petitioners’ convictions were affirmed, with the Court noting that “ulterior motives [do not] invalidate police conduct that is justifiable on the basis of probable cause to believe a violation of law has occurred.” One of the ulterior motives at issue in the case was the race of the person being stopped, which petitioners argued could allow for selective enforcement of the laws. While the Court agreed that the Constitution prohibits racially selective enforcement of the laws, it suggested that the proper remedy for discriminatory law enforcement is the Equal Protection Clause, not the Fourth Amendment.
At first glance, the Whren case appears to disavow racially selective law enforcement. The Court did, after all, “agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.” But the Court’s reference to the Equal Protection Clause is actually a clever act of judicial prestidigitation; the question in the case was never whether an Equal Protection Clause violation had occurred. The question in the case is whether ulterior motives—such as race—can vitiate probable cause or reasonable suspicion if an objectively reasonable police officer under the circumstances wouldn’t have actually detained the petitioner. The Court stated very clearly in this case that ulterior motives such as race are not relevant to determining whether a police officer’s actions are objectively reasonable under the Fourth Amendment. Under Whren, a police officer can selectively pull over and investigate citizens on the basis of race, and their actions can still be deemed reasonable so long as there’s an independent basis of probable cause or reasonable suspicion, no matter how unlikely it is that an ordinarily prudent police officer under the circumstances would’ve initiated the stop for the reason given. The fact that such behavior might create the foundation for an Equal Protection Clause claim is inapposite to the question in the case. Under Whren, the fact that a police officer’s decision to detain someone may have been motivated by race is irrelevant to determining whether the officer’s actions were objectively reasonable under the Fourth Amendment. By removing the “ulterior motive” of race from consideration under the Fourth Amendment, the Whren Court created a constitutional order that tolerates racially discriminatory policing, and they did it in plain view.
The Effect of Brignoni-Ponce and Whren on State Immigration Law: A Case Study From Alabama
The effect of these two cases, Brignoni-Ponce and Whren, can be seen in the passage of a recent state immigration laws that incorporates federal constitutional law by reference. Alabama recently passed one of the strictest immigration laws in the nation; the Taxpayer and Citizen Protection Act [hereinafter TCPA], signed into law in 2011, places expansive legal restrictions on the activities of non-citizens within the State of Alabama, while also expanding the powers and prerogative of law enforcement. These restrictions/powers include denial of public benefits, denial of post-secondary education, denial of employment opportunities, stern penalties for businesses who hire illegal immigrants, and affirmative duties on law enforcement officials to check the immigration status of citizens detained for other reasons. The last of these is perhaps the most disconcerting:
SECTION 12. (a) Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. Such determination shall be made by contacting the federal government pursuant to 8 U.S.C. § 1373(c) and relying upon any verification provided by the federal government.
The TCPA states that government officials may not use “race, color, or national origin” as the basis of enforcing many of its provisions. However, there’s a catch: section 12(c) of the TCPA incorporates the U.S. Constitution by reference; it specifically allows state law enforcement officials to consider race to the extent allowed by the U.S. Constitution. That means that Brignoni-Ponce and Whren govern the application and enforcement of section 12. The result of this constitutional loop-hole is that the ban on considerations of race in Section 12(c) of the TCPA is essentially dead letter. The constitutional exception created by Brignoni-Ponce and Whren swallows the rule, because both of those cases allow law enforcement officials to take race into account when enforcing Alabama’s immigration statute.
These two cases: Brignoni-Ponce and Whren, demonstrate that the Constitution, thought it may have once been, is not now colorblind. These decisions specifically allow law enforcement officials to consider race when enforcing the law, and have unintended consequences for state laws that incorporate U.S. Constitutional standards by reference. The result of these cases is that the U.S. Constitution does in fact know and tolerate classes among its citizens. Many will perhaps be startled by this realization; others may even support it. But that it is a fact of life under current Constitutional regime cannot be denied.
 Harlan used language in his dissent that strongly implied that he did not believe that all races were equal. In fact, one of the central premises of his argument was the fact that Chinese persons, “a race so different from our own that we do not permit those belonging to it to become citizens of the United States,” were allowed to ride with Whites in the same train car, while Blacks, who actually had access to American citizenship and civil rights, were not. Plessy v. Ferguson, 163 U.S. 537, 561 (1896). While Harlan does not quite come out and say that Chinese persons are inferior to Whites, the language is troubling, to say the least.
 Plessy, 163 U.S. at 559.
 Plessy, 163 U.S. at 559.
 See discussion infra (discussing the Whren and Brignoni-Ponce cases).
 Id.; see also 8 U.S.C. § 1324(a)(2) (2005).
 Brignoni-Ponce, 422 U.S. at 875.
 Id . at 886—87 (“The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor [in furnishing reasonable suspicion]. . .”).
 Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
 See Katz v. United States, 389 U.S. 347, 357 (1967) (quoting Agnello v. United States, 269 U.S. 20, 33 (1925)).
 See Aguilar v. Texas, 378 U.S. 108 (1964) (establishing first part of test); Spinelli v. United States, 393 U.S. 410 (1969) (establishing second part of test).
 See Illinois v. Gates, 462 U.S. 213, 230 (1983).
 Wardlow, 528 U.S. at 123.
 See generally Andrew Guthrie Ferguson & Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587 (2008) (discussing the problems inherent to “high-crime areas” when attempting to analyze their impact on Fourth Amendment legal analysis).
 Brignoni-Ponce, 422 U.S. at 879 (“The Government has estimated that [eighty-five percent] of the aliens illegally in the country are from Mexico.”). But see Ferguson & Bernache, supra note 21, at 1591 (discussing the absence of an objective, evidence-based standard for determining what actually constitutes a “high-crime area.”).
 Id. (noting that there were 340,252 people detained at the border during the 2010-2011 fiscal year, and that “CBP officers and agents seized nearly 5 million pounds of narcotics, a 20 percent increase from FY 2010[,] and confiscated more than $126 million in undeclared currency.”).
 517 U.S. 806 (1996).
 Id. at 810 (restating petitioners’ argument that “police officers might decide which motorists to stop based on . . . impermissible factors, such as the race of the car’s occupants.”).
 The opening paragraph of Scalia’s opinion expressly refers to the Fourth Amendment while stating the issue before the Court. Id. at 808.
 Taxpayer and Citizen Protection Act, H.B. 56, 2011 Leg., Reg. Sess. (Ala. 2011).
 TCPA, §§ 7(d), 10(c), 30(e).
 Id. at §12(c) (“A law enforcement officer may not consider race, color, or national origin in implementing the requirements of this section except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901.”).