The Next Roe vs. Wade? Obama's Pyrrhic Victory in Arizona

Showing complete disregard for the constitution, the rule of law, the democratic will of the people of Arizona, Clinton appointee Susan Bolton issued an injunction against the major aspects of Arizona's law in federal district court. The Arizona Daily Star summarized the blocked provisions:

• "Requiring a police officer to make a reasonable attempt to check the immigration status of those they have stopped;

• Forbidding police from releasing anyone they have arrested until that person's immigration status is determined;

• Making it a violation of Arizona law for anyone not a citizen to fail to carry documentation;

• Creating a new state crime for trying to secure work while not a legal resident;

• Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States." [Judge blocks vital parts of Arizona immigration law, Arizona Daily Star, July 28, 2010]

To briefly dispense with the legal basis of the decision: Bolton ruled

"The number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established,"

The key word there is "priorities."

State Senator Russell Pearce drafted SB 1070 with the assistance of Kris Kobach. Kobach is no lightweight. He served as editor of Yale Law Journal and as counsel to Attorney General John Ashcroft.  Kobach unsuccessfully defended Hazleton, Pennsylvania and Valley Park, Missouri's local immigration ordinances, which were thrown out.

These laws were overturned based on the grounds of interfering with federal law and due process.

Learning from those defeats, SB 1070 was designed specifically to mirror federal immigration law. Therefore, if the state law violates due process, then so would federal immigration law. As for pre-emption, they are only questioning, arresting, and detaining illegal aliens for offenses that are federal crimes, so there is absolutely no conflict with federal law.

Eric Holder's Justice Department came up with a novel way to try to get around common sense by arguing:

"In exercising its significant enforcement discretion, the federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety. Consistent with these enforcement priorities, the federal government principally targets aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants; and fugitive aliens, especially those with criminal records…"

and that

"S.B. 1070…attempts to second guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien's entry and presence in the United States." [The United States of America v. The State of Arizona,(PDF)]

In other words, the Obama administration has arbitrarily decided not to enforce immigration law—unless an illegal alien is also a terrorist or a rapist (though these still manage to slip through the cracks).

Because Arizona would send illegal aliens guilty of federal crimes to the federal government, this would interfere with Administration's "enforcement priorities."

Patriotic immigration reformers inside the Beltway were incredibly confident that the law would be upheld. They pointed specifically to Muehler vs. Mena, where the Supreme Court Ruled 9-0 just five years ago that local police could inquire into immigration status without reasonable suspicion (SB 1070 requires reasonable suspicion) and the notoriously liberal 9^th Circuit Court's decision to uphold the Legal Arizona Worker Act in Chicanos por la Causa Inc. v. Napolitano. [PDF]

One even told me that Sonia Sotomayor would rule in favor of SB 1070!

I believe this was always naïve. True, most judges are not total ideologues. So when a case dealing with immigration reaches their bench, even many liberals will look to precedent and the Constitution for guidance.

But Susan Bolton knows that if she is ever to be nominated to a higher court, it will be done by a Democrat. She also knows that no Democrat would appoint her if she had the gall to uphold SB 1070.

There is a flip side to the high profile of SB 1070—which is that it will most likely end up in the Supreme Court.

This puts its fate in the hands of both Arizona Governor Jan Brewer and the Supreme Court.

The former might be more important. Many state and immigration laws are never tested because the governors and mayors choose not to defend them (as was the case in California's Proposition 187) or can simply cannot pay for the legal fees of going against the limitless pockets of the Federal Government, MALDEF, etc. (as it unfortunately may happen in Fremont, Nebraska.)

But Jan Brewer has vowed to fight on:

"This fight is far from over. In fact, it is just the beginning, and at the end of what is certain to be a long legal struggle, Arizona will prevail in its right to protect our citizens…I will battle all the way to the Supreme Court, if necessary."

Unfortunately, Brewer felt she had to add that she would do all this while "holding fast to the diversity that has made Arizona so great." [Statement by Governor Jan Brewer, July 28, 2010 (PDF)]

Brewer is facing reelection and 71% of Arizonans support SB 1070. There must be a concern that she will not follow through with this rhetoric after she is reelected. But, if only out of pure political opportunism, I like to think the fact that she is being touted as a presidential candidate will influence her.

Assuming Brewer fights on, what can we expect from the Supreme Court?

Here I am cautiously optimistic. It is no secret that Chief Justice Roberts is not friendly to the Obama agenda. He became visibly upset when Obama criticized him during the State of the Union Address. Swing voter Anthony Kennedy also does not appear to be a fan of Obama and stated that he will not retire until after the 2012 elections.

That being said, Kennedy is somewhat of a libertarian and conservative Republicans are often on the wrong side of the immigration debate.

Once again, as with the great amnesty battles of 2006 and 2007, everything hangs on the reaction of grassroots Americans. They should not get discouraged. They should get angry and active. The American people overwhelmingly oppose the Obama Administration's lawsuit. A July 13-16 poll from Quinnipiac University found Americans opposed the lawsuit over 2-1 at 60%-28%.

Dick Morris, no particular friend of patriotic immigration reform, argues that the decision will backfire on Obama:

"When Judge Susan Bolton granted an injunction halting the enforcement of key provisions of the Arizona immigration enforcement law, she ruled in favor of the Justice Department's position, but against the president's political interest.

"Had the judge sustained this law, it would have made moot Obama's opposition to the Arizona law.  As it is, she has transformed the law into a big campaign issue against Obama. Now the president is standing in the way of a state that wants to enforce the law that he won't.

"The Arizona law is massively popular in the United States. Over 60 percent of all American voters support it. But the president has sought and has succeeded in stopping it from taking effect. Now this majority -- close to two-thirds of the electorate -- that backs the law will be able to focus their blame for its non-enforcement squarely on the president of the United States."

Immigration Decision Will Erode Obama Support, By Dick Morris & Eileen Mcgann, DickMorris.com, July 28, 2010

Jim Pinkerton even predicts that Judge Bolt's decision on SB 1070 could become the next Roe vs. Wade—which, whatever you think of abortion, did inadvertently unleash a formidable political movement:

"Now let's complete the historical parallelism between Roe then and U.S. v. Arizona now. The voters figure out that their views have been trampled and start voting out the politicians who defend judicial trampling. Inch by inch, the law reverts back toward where it was before the judicial decision.

"And yet Roe happened in the pre-Rush Limbaugh era. Anti-elite backlashes happen much quicker now, and are even more powerful, thanks to new media. Think Dubai Ports Deal. Think Khaled Sheik Mohammed trial location. Think mosque at Ground Zero. The Obama Justice Department has lit yet another fuse."

[Arizona immigration ruling: Thwarting a police state or will of the people?, Jim Pinkerton, The Politico, July 28, 2010]

The job of patriotic immigration reformers is to provide more powder for that fuse. This means demanding that Senators make questions about immigration enforcement the center of confirmation hearings of judges—starting with Elena Kagan.

In my last piece, I discussed how many gubernatorial candidates are campaigning on passing an Arizona law. This effort must be redoubled. Governors must be required to pass Arizona laws and be willing to stand up to the federal government.

Obama's may have won his injunction. But by making his disdain for our immigration laws and democratic process crystal clear to the American public, his victory may be pyrrhic.

"Washington Watcher" [email him] is an anonymous source Inside The Beltway.