Health care reform isn’t the only major policy battle the Obama
administration will fight before the Supreme Court. The justices
will also hear a case in which the Obama Justice Department asks
them to overturn Arizona’s SB 1070, a controversial law empowering
state and local police to detain suspected illegal immigrants in
the course of their normal work.
Controversial in certain circles, that is. The law rescued Gov.
Jan Brewer’s reelection campaign and retains 2-1 support in recent
Arizona polls. There have been numerous copycat bills in state
legislatures across the country and the most successful have
attracted Obama administration lawsuits of their own.
Russell Pearce has been down this road before. The former
Arizona state senate president is the architect of SB 1070 and
other immigration control measures — including a law requiring
businesses to use the E-Verify system to check the legal status of
their workers, which also ended up before the Supreme Court.
“We won 5 to 3 on the E-Verify case,” Pearce says. “The same
issues and constitutional principles are at stake here. I expect
we’ll win 5 to 3 again.” (Justice Elena Kagan, the former solicitor
general, recused herself in the last case and will do so again in
the forthcoming one.) Indeed, the Supreme Court found that Arizona
immigration law fell “well within the confines of the authority
Congress chose to leave to the States.”
Pearce was recalled in November, but notes that “amnesty, the
DREAM Act, and open borders” were all downplayed in the race. The
Republican who replaced him, Jerry Lewis, described SB 1070 as “a
good start.”
Oddly, the case comes as the Obama administration touts record
deportations of illegal immigrants. Most of the spike in removals
comes from illegal aliens who committed other crimes, many of whom
were already in state or local custody. So why doesn’t the
administration support SB 1070?
Many of the illegal immigrants Arizona would refer to the feds
for deportation are not in line with the administration’s
enforcement priorities. Arizona lawmakers are seeking to reduce the
overall illegal population in the state by attrition through
enforcement. The Obama immigration authorities want to remove only
criminal aliens, in part to look tough enough to build support for
renewed “comprehensive immigration reform.”
It is not clear that this difference in policy priorities is
sufficient to render SB 1070 an unconstitutional encroachment on
legitimately federal prerogatives. To paraphrase the late Sonny
Bono, illegal immigration remains illegal. Arizonans argue they are
just doing the job Washington won’t do, but the decision to deport
remains the federal government’s.
As if to prove that politics makes for strange bedfellows, some
of the president’s liberal supporters are troubled by the number of
deportations. They are opting out of the Secure Communities
Program, which was designed by George W. Bush’s administration
after it became clear amnesty would be politically impossible if
there wasn’t some effort to enforce the law.
Similarly, some Republican presidential candidates seem to be
reluctant to embrace attrition through enforcement. Pearce says the
GOP field is “weak” overall on illegal immigration. “I was troubled
by Newt Gingrich’s recent comments,” Pearce says of Gingrich’s
proposed guest-worker program, though he notes the former House
speaker is “very bright.” Pearce considers Michele Bachmann the
strongest candidate on immigration enforcement. He was also pleased
with his conversations on the subject with Herman Cain, who has
since dropped out, and Mitt Romney.
Long before a Republican nominee faces Obama, the Supreme Court
will once again weigh in on Arizona and illegal immigration. But
the president, who has often sought to play both sides of the
amnesty debate against each other, has already made his position
crystal clear.
