After Mexico’s President Filipe Calderon gave his address to the U.S. Congress, we convened in Georgetown University’s Law Center for what turned out to be an at times headed discussion of SB 1070, Arizona’s controversial immigration law. We wanted to know: Is it legal? Is it fair? Will it lead to racial profiling?

IWF President Michelle Bernard asked: “Is this our Birmingham?” Paraphrased, Michelle wanted to know if this situation has become so severe that the country will at last be forced to address the issue of immigration, an at-times-painful issue we’ve often avoided. 

The first panel of the day was kicked off by Senator Jon Kyl, who accurately predicted that we’d have no trouble getting a spirited debate. Senator Kyle’s main point was that Arizona had been forced into passing the law because the federal government wasn’t doing its job of enforcing immigration laws. Because of a glitch with my computer thumb, you won’t get to read my stellar account of that brilliant and heated discussion. Suffice it to say that my report is a lost gem. But here are some highlights ant notes from the second panel, which dealt with the constitutionally of the Arizona law:

MICHELLE BERNARD: Gut reaction, if a challenge makes its was to the Supreme Court, will the law be held constitutional or not?

ROGER PARDO-MAURER, adjunct professor at NYU: He says that he doesn’t think that strict ideas about the law are key here. “Arizona is a state under extreme duress. They see themselves as a state that is being invaded.” But will the law work?  “Arizona is going to find it difficult to make this law work if one third withdraws emotionally from this law,” he said. He added that the problem will get worse.

MARSHALL FITZ, Center for American Progress: “The law has indisputably raised constitutional questions that will have to be answered by the courts. It pushes to the limit what a state can do in a federal system. I believe several provisions will be struck down.” He believes that, even if this is not the case, there will be broader challenges when the law is implemented.

VIET DINH, professor, Georgetown University Law Center: He is asked by Michelle how to define what constitutes “reasonable suspicion” to stop somebody. Will it constitute racial profiling? It seems to me that Professor Dinh was saying that we have to watch to see if this happens when the law is enforced. Dinh says the one issue that is new is the issue of preemption. (Federal law preempts state law.) Dinh thinks that the real question is, “Is the Arizona law in conflict with federal law?” Dinh says that it is hard to see a conflict–the Arizona simply says it is going to provide the resources to enforce federal law. The feds say, basically, we’ll enforce it when we can get around to it. If the president signed an agreement with Mexico that we were to enforce only a percentage of immigration law, then there might be a conflict. There is no conflict now.

MICHELLE: Some say that people of color will be profiled…

PATRICIA ANN MILLETT, partner at Akin Gump Strausss Hauer & Feld: Hard to say reasonable suspicion will lead to racial profiling. These things would be hard to talk about in advance of enforcement. Millett raises a constitutional issue: There’s a federalism question. Only the federal government can enforce federal law. The frustration that caused Arizona to do this are understandable. But Millett wonders if, when the states do this, they might be letting federal government off the hook. “Are we then outsourcing the constitutional problems?”

MIGUEL ESTRADA, partner, Gibson, Dunn & Crutcher: “Viet was right in saying the Arizona law is not in conflict with federal law but is in conflict if the federal government decides to only partially enforce the law?”  If President Obama agreed with Mexico to only enforce 20 percent of the law, would that change the constitutionality of the Arizona law?  A key issue is whether you can ever use the appearance of a person in this situation. Justice Powell said that appearance of being Mexican could be considered a “relevant factor” but isn’t enough. It can only be taken into account with other factors.      

ORRIN BAIRD of Seiu: Disagrees with idea that Arizona is simply enforcing federal law. Baird says it has created new law that is similar to federal law and wants to enforce this new law. 

Ms. Millett raised an intriguing question: Could the Arizona law, prompted by the state’s long border with Mexico, be considered foreign policy law? Only the feds can do foreign policy.

Michelle: “Have we gotten to the point where the nation must do something? Is this our Birmingham?”

Michelle said that what she means is that this may be the time that the issue gets so much attention that we really have to, at last, deal with the issue.

Estrada pointed out that in the 1980s we put forward a two-pronged program–give amnesty to illegals already here and then enforce border security. Only half of that was done, and we now find ourselves confronting the very same issue.

Estrada praised Heather Mac Donald of the previous panel, who had said that the real issue boils down to this: Are we going to enforce immigration laws? Those who oppose the Arizona law simply don’t want to enforce immigration law, Mac Donald said. He called for a rational immigrant policy that includes people from all over the world, and one that is not driven by an accident of geography.

This was a terrific panel, not as heated as the previous one, but provocative in a lawyerly way.  For me, it set the stage for thinking about whether this law is constitutional and whether it will lead to racial profiling. Since my opinion isn’t what matters here, I am not going to say what I think. But I wish everybody who cares about the issue had had an opportunity to attend.