- The Washington Times
Sunday, April 22, 2012

The Supreme Court’s health care showdown last month was all about Constitution theory and prerogatives. Wednesday’s arguments between Arizona and the Obama administration over the state’s tough immigration law looks to be all about power.

Arizona argues that the federal government has failed to enforce its laws on the books and says states should be free to enforce their own laws as long as they complement the national goals. Obama attorneys say the Constitution gives power over immigration to the federal government, and there can be no infringement.

The electorate is clearly on the side of Arizona: A Quinnipiac University Poll last week found that 62 percent of voters said they want the court to uphold the law.

But what the justices do is another matter altogether.

The law at stake, known as S.B. 1070, would grant state and local police the power to check the immigration status of those with whom they come into contact who they suspect are in the country illegally. It also requires legal immigrants to carry their papers — a mandate of federal law.

First a district court and then the 9th U.S. Circuit Court of Appeals blocked those parts of the law, sending S.B. 1070 on to the Supreme Court.

In the meantime, other states — including South Carolina, Alabama, Georgia and Utah — have followed Arizona’s lead in granting police enforcement powers.

Michael Wildes, an immigration lawyer in New Jersey, said filling in where the federal government is failing is not a constitutional reason to tread on federal prerogatives.

“The problem is that you can’t have a patchwork — we can’t have a quilt made of different patches in different states,” he said. “We need a seamless federal immigration law that will treat everybody equally.”

Mr. Wildes said the polling that showed most Americans favor Arizona’s law is a testament to frustration with the federal government on immigration. He said voters, egged on by “the xenophobia the media has created,” are beginning to take an us-versus-them approach to immigration that he said would shock the country’s founders.

Kris Kobach, who helped write S.B. 1070, said the law was designed to help the federal government, not to compete with it. He said there is no federal law that conflicts with Arizona’s, but rather a federal policy by the Obama administration, which enforces the law selectively.

Mr. Kobach, who was elected secretary of state in Kansas in 2010, said that would set a troublesome precedent.

“If the 9th Circuit decision is affirmed and Arizona loses, then we would be in a situation where the president or any minor official in the executive branch could simply invalidate dozens of state laws by issuing a formal statement or order,” he said. “They literally are saying that unelected officials can pre-empt state laws merely by saying the state law doesn’t meet their preferences.”

While President Obama and his advisers criticized the law in 2010 for leading to potential racial profiling, the lawsuit they filed asking the court to block it relies not on discrimination claims but on issues of government power and decision-making.

In one claim, the administration says the law interferes with the federal government’s ability to control foreign relations. Underscoring that claim, the government’s legal brief filed with the Supreme Court is signed by the State Department’s legal adviser, Harold Koh.

Mr. Kobach called that laughable, and the dissenting judge in the 2-1 decision at the appeals court level, Judge Carlos Bea, said to accept that argument would give other countries a “heckler’s veto” over state laws.

Brian Bergin, an attorney for Sheriff Larry A. Dever, whose Cochise County includes 83 miles of the Mexico border in Arizona, said he will be watching to see what the justices say about that during oral argument.

“If the administration prevails in its argument that state law can be pre-empted by virtue of the objections of foreign interests, we’ve put ourselves in a position where I guess foreign policy becomes more important than homeland security,” Mr. Bergin said.

Last year, the Supreme Court upheld an earlier Arizona law that requires all businesses in the state to use E-Verify, the federal government’s voluntary database that checks potential hires’ Social Security numbers to determine whether they are authorized to work in the U.S.

In that case, the court, in a 5-3 decision, said Congress specifically left the door open to states to enact business licensing schemes.

Mr. Wildes said the two cases are different and that the E-Verify decision won’t set a precedent for the law enforcement case, but Mr. Kobach said it is an example of concurrent enforcement by states using a federal tool. He also said since that case is now official precedent, he will be looking to see whether the justices who dissented will now feel bound by it.

The list of those who have officially intervened to keep tabs on the current case reads like a who’s who of the immigration movement: Arizona Sheriff Joe Arpaio, who supports the law; two former Arizona attorneys general who opposed the law; the AFL-CIO and the Service Employees International Union, who have taken the lead as the labor movement has embraced legalization; the U.S. Conference of Catholic Bishops, which also pushes for legalization of illegal immigrants; and Rep. Lamar Smith, Texas Republican and chairman of the House Judiciary Committee.

Justice Elena Kagan recused herself from the case in December, presumably because of her work as solicitor general.

Arguing on behalf of Arizona is Paul D. Clement — the same man who argued the recent case for challengers to Mr. Obama’s health care law.