Special Report

Small Victories in Arizona Immigration Decision

But immigration remains unmistakably under federal authority -- and a political football this election year.

By 6.26.12

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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.

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.