On Monday, the Supreme Court ruled
that most of Arizona’s controversial immigration law, SB1070,
is preempted by federal jurisdiction over immigration policy. The
Court upheld the part of the law that allows (or in some cases
requires) police officers to check the immigration status of those
they detain for other reasons. But even this aspect of the law was
upheld narrowly (on grounds that it is too early to rule on whether
it is preempted by federal law) and is likely to be subject to
further challenge.
Within minutes, Arizona Governor Jan Brewer released a
statement, which begins as follows:
Today’s decision by the U.S. Supreme Court is a victory for the
rule of law. It is also a victory for the 10th Amendment and all
Americans who believe in the inherent right and responsibility of
states to defend their citizens. After more than two years of legal
challenges, the heart of SB 1070 can now be implemented in
accordance with the U.S. Constitution.
The governor doth protest too little; it is not a great legal
victory for Arizona.
There was a surprising consistency of reasonable
characterization in “mainstream media” early reaction, such as the
Washington Post calling the ruling a “partial
victory” for the Obama administration, and a Phoenix CBS
television station describing it as a “small
victory.” Even
Reuters’ initial analysis was entitled “High Court upholds key
part of Arizona immigration law.”
As if to rub salt in Arizona’s wound, later on Monday the Obama
administration ended what are known as “287 agreements” with
Arizona which had effectively deputized local law enforcement
officials to help implement federal immigration law. One can just
hear Homeland Security Secretary Janet Napolitano cackling, “How
does that ‘victory’ feel now, Jan?”
While both sides may claim they earned a minor victory, the
larger legal victory was the administration’s. The bigger question
is the political impact. With a majority of Americans in favor of
the Arizona law but a majority of Hispanics against it, the result
looks to be a mixed bag, though more likely a negative among the
large and critical bloc of independent “swing” voters — if the
Republicans and Mitt Romney gain the skill and courage to use the
issue to their advantage.
Although almost all of the Arizona law was struck down, the part
that was upheld (though it is far from safe from a future
challenge, which could come within days), a provision that
opponents call “show me your papers,” is a real deterrent to
illegal alien presence in the state — or it would be in an
environment in which the federal government was enforcing federal
law.
If Arizona were told “you can have only one section of SB1070
upheld, which would you like it to be?” it probably would have
opted for Section 2, the part that was at least temporarily — and
unanimously — allowed to stand.
After all, provisions making a state crime of behavior that is
already a federal crime are not likely to deter those willing to
violate federal law. It is only the chance of being caught and
prosecuted that might serve as deterrence. Monday’s ruling allows
to stand the section of SB1070 that increases the chance of being
caught, though eliminating the sections that make it more likely an
illegal alien will be prosecuted.
Prosecution will remain the province of the federal government,
but today’s actions by the administration may make illegal aliens
feel more comfortable dipping their toes into Arizona sand: Not
only did the administration end the 287 agreements, but, according
to the
Washington Times, “it has issued a directive telling
federal authorities to decline many of the calls reporting illegal
immigrants that the Homeland Security Department may get from
Arizona police.”
A Romney campaign ad of a hypothetical Immigration and Customs
Enforcement Agency (ICE) answering machine message should be in the
offing…
With the Obama administration looking to gut immigration law as
we head into the November elections, Section 2 will be a distinct
thorn in its side because it will increase the number of referrals
to ICE of illegal aliens caught in Arizona. Those statistics,
combined with actual deportation data, will put the administration
in a position of either having to deport more people, which it will
not do, or to be attacked — justifiably — for not enforcing the
law.
Given President Obama’s recent announcement that ICE and the
Department of Homeland Security will stop enforcing immigration law
when it comes to illegal aliens who were brought here as children
and who do not have criminal records, it is clear that his
administration prefers to risk a non-enforcement accusation than to
be seen as immigration hawks.
The Pew Hispanic Center
estimates that “Up to 1.4 million children and young adults who
are in the United States illegally could potentially benefit” from
the policy change, “represent[ing] about 12% of the 11.2 million
unauthorized immigrants in the U.S. as of 2010…”
This, like all decisions of the Obama administration, is a
purely political calculation: Obama’s campaign team knows that the
president’s strength among non-Hispanic white voters has dropped so
much, with the enthusiasm (if not the actual percentage support)
among black voters also being weaker than four years ago, that it
must do anything and everything to appeal more to Hispanics. In
short, the Hispanic vote is Obama’s electoral firewall, but a
rather weak one which his campaign is desperate to shore up.
Thus the massive change to the current policy from an
administration that had attempted to court conservative voters by
deporting a record 400,000 illegal aliens annually. Even the
left-leaning British newspaper The Guardian was
puzzled by Obama’s continuous schizophrenia on immigration,
asking nearly a year ago “Will the real president please stand
up?”
Is the Obama immigration gambit likely to succeed? While more
Hispanics are pleased than displeased with the policy shift, a
Gallup
poll released on Monday shows that among Hispanic registered
voters, immigration is the fifth most important issue, after health
care, unemployment, economic growth, and even “the gap between the
rich and the poor.”
The poll highlights an error that many political analysts make
when discussing the political impact of immigration policy:
Hispanic registered voters have, as a group, rather different
priorities — with much less focus on immigration — than does the
aggregate of all “U.S. Hispanics.” In that latter undifferentiated
group, immigration was tied with health care and unemployment as
the three most important issues. For those who simply poll
Hispanics, rather than narrowing the sample to Hispanic registered
voters, when it comes to immigration policy the actual impact on
election outcomes will be overestimated.
The gap in issue importance (for all issues) between all U.S.
adults and U.S. registered voters is generally much smaller than
among Hispanics, though even here immigration has the largest gap,
with only five percent of registered voters calling immigration
their most important issue, versus eight percent of all adults.
Gallup also notes that Obama leads Romney among every group of
Hispanics (divided by their choice of most important issue) except
for those who name the budget deficit as their primary concern. In
the other categories, Romney’s best showing is with those who care
most about economic growth, but even there he is 26 points behind
Barack Obama.
And this brings us to Mitt Romney. Romney, who moved distinctly
to the right during primary season, is now faced with the mixed
blessing of being the presumptive nominee. It allows him to drift
back to his more centrist, pragmatist comfort zone, but also
requires him to thread political needles, of which few have
narrower eyes than immigration.
President Obama gave Mitt Romney a major opening with his policy
shift which would give de facto amnesty to more than a
million illegal immigrants, yet Romney’s response was tepid and
timid. As American Spectator contributing editor Jed Babbin puts
it, “I’m very worried about Romney’s lack of force on issues Obama
tees up for him. He needs to pick useful fights whenever Obama
leads with his chin.”
Romney’s statement released shortly after the Supreme Court
ruling was his latest effort to find the needle’s eye, chastising
President Obama for “fail[ing] to provide any leadership on
immigration” while also calling for “a President who will lead on
this critical issue and work in a bipartisan fashion to pursue a
national immigration strategy.”
A final note: It is a political mistake by Jan Brewer and others
who want either stronger immigration enforcement or a Romney
victory in November to trumpet Monday’s Supreme Court decision as a
victory. While the Court did, at least for now, allow the Arizona
law’s most controversial provision to stand, it made clear that
authority over immigration policy and enforcement remains with the
federal government.
The ruling is constitutionally reasonable, even if a source of
honest disagreement among conservatives. But the political points
should be clear to Republicans:
• What does the word “law” mean in this country if it is
something which can be broadly ignored based on one man’s political
whims? This, rather than particulars of state law versus federal
law, is brought into focus by Arizona v. United
States.
• By what right, either political or ethical, can the president
give a “get out of jail free” card to ten percent of this nation’s
illegal aliens, no matter how sympathetic their personal
stories?
• While nobody wants to penalize children and young adults for
the years-earlier behavior of their parents, the moral hazard of
the administration’s move cannot be overstated. Offering the
functional equivalent of amnesty is, despite widespread empathy for
any given individual’s situation and history, is the single biggest
magnet the United States could deploy to attract illegal immigrants
and their children to this country. With one of the biggest
negative impacts of illegal immigration being that of non-English
speaking children burdening our public education systems, this is a
magnet that threatens to damage the educations of many citizens’
and legal residents’ children.
• President Obama ignored the issue of immigration reform until
his reelection seemed in peril, trying at first to play to
conservatives by aggressive deportations but proposing no reform
initiatives, even as Democrats had total control of Congress for
two years. Every recent change in Obama’s immigration policy,
including today’s actions following the Arizona Supreme
Court decision, are part of a transparent effort to garner Hispanic
votes while ignoring, as he has for his entire presidency, any real
effort to improve all Americans’, including Hispanic Americans’,
prospects for a good and stable job. Mitt Romney might well ask the
Hispanic community to consider whether Barack Obama’s bald-faced,
bad-faith, eleventh-hour conversion shows anything other than the
president’s hoping that Hispanics are too stupid to see how they’re
being played.
