For the last two years a major immigration issue has been Arizona’s law SB1070, which among other things authorized local law enforcement to detain undocumented immigrants in case of any law violation, even as trivial as a traffic infraction. Also the police could demand documentation of anyone they suspected of being undocumented. It would be a crime in the state if an immigrant failed to carry papers demonstrating he/she was authorized to be in the country. SB1070 also made looking for employment a crime for the undocumented. There were other features related to harboring them.
Proponents of the law argued that, since the federal government had made a mess of immigration by not vigorously enforcing existing law, the states had to act. Their approach would amount to“deportation by attrition’, since many undocumented quickly fled the state. Other states soon developed SB1070 look-a-likes. Immigrant advocates challenged the law in court and its gut provisions were overturn in federal court at the district and appellate levels. Immigration was deemed the exclusive turf of the federal government. Wednesday (April 25) the Supreme Court will hear oral arguments on appeals, and willcome to a decision soon afterward that is expected to be published in late June.
There is much speculation how the court will decide. This is a very political court and adjudicates in an especially partisan political season. It has been regularly divided 5-4 on controversial cases, usually deciding in favor of the Republicans. Precedent would favor federal exclusivity, as well as common sense — in that the country can’t have fifty state immigration policies. Now a fever running among Republican is for restricting immigration and, more fundamentally, for curbing the powers of the federal government in favor of the states. That is similar to the argument being made on Obamacare.
There is, however, some doubt that a conservative Republican majority will respond in lockstep with the GOP right. Justice Anthony Kennedy is viewed as a more moderate swing vote and the legal precedents are strong – going back to the 1830s and 1840s when nativists pushed through state legislatures laws restricting the rights of Irish and German immigrants. That may influence Chief Justice John Roberts. Though conservative and Republican, the majority on the court are still jurists. The liberal minority will be weakened, because Justice Elena Kagan recused herself. She had work on the Arizona case when she was solicitor general. But only one of majority joining the minority justices is needed to overturn SB1070. A tie (4-4) upholds the lower court decisions.
Both the Arizona decision and the Obamacare decisions will come down just before the presidential nominating conventions. Whatever their results, they are sure to stir and embitter the fall campaign. Already Mitt Romney has expressed his support for the Arizona law and so run afoul of Hispanic voters. He has attempted of late to nuance his support, but to no success in narrowing the enormous gap among Hispanic voters with Obama. The president, while enjoying this advantage, ironically has set records at deportation – 400,000 a year. Meanwhile, the Pew Hispanic Center reports that immigration, at least from Mexico, has come to a standstill.