Special Report

Obama Takes on Arizona

The Supreme Court will weigh in on the administration's least favorite immigration law.

By 12.13.11

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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.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.