Given the intense drilling from Supreme Court justices hearing oral arguments in the Arizona immigration law challenge, writing is on the wall says the law may likely be upheld.
Eight justices – Kagan recused herself because she worked on the case while Solicitor General before being sworn in – didn’t appear to think the Arizona law unlawfully encroaches on the federal government’s authority to enforce U.S. immigration policy.
Justice Scalia was obvious about it: “what’s wrong about the states enforcing Federal law?” Even Obama appointee and the only Hispanic on the bench Justice Sonya Sotamayor was skeptical at one point suggesting she agreed with Chief Justice John Roberts’ suggestion that the Arizona law may not precisely be inconsistent with federal immigration laws.
“[Y]ou can see it’s not selling very well — why don’t you try to come up with something else?” Justice Sotomayor asked. “Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the person into custody. So what’s left of your argument?”
And another left leaning Justice Stephen Breyer queried if a law that required to check status could truly be in conflict with the federal law – which simply allows them to do just that.
Of course, the government and millions of legal American residents and Citizens of Hispanic and Latino descent argue they would be racially profiled and inconvenienced at an exponentially higher rate than their fellow White citizens. A CNN poll revealed that 74% of Hispanics and 47% of Whites feel the law will increase discrimination.
It may be a necessary evil to deal with problems border states face when the feds refuse to enforce the law.
In its brief to justify the law, Arizona complained that criminal aliens make up over 17% of the prison population. The county serving Phoenix includes 21.8% felony defendants in the country unlawfully. It stated that Arizona spends several hundred million dollars providing education and healthcare to aliens unlawfully in the state. “Private ranchers living near the border constantly face the epidemic of crime, safety risks, serious property damage, and environmental problems (including large deposits of trash and human waste,and cut water lines and fences) associated with a steady flow of illegal crossings on their land,” the state argued.
If the court upholds the law, it may be acting in concert with the American public. A recent Fox News poll showed 65 percent supporting the law. Even among Hispanic Americans, a key demographic presumed to be against the law, there is a split. Twelve percent of second-generation Latino voters in the state say they support S.B. 1070, according to a recent Latino Decisions poll. That jumps to nearly 30 percent in the fourth generation.
Those who support the law may think that increased stops and delays on legal and American citizens of Hispanic origin is a price to pay. Tell that to those who may be subject to a substantial increase of stops that disrupting travel and daily life.
But the case will hardly go away. Alas, it has only just begun. If upheld, other border states may follow suit and legislate their own version. However, as soon as the law is applied, it becomes ripe for a subsequent lawsuit that stipulates it violates the equal protection clause of the 14th Amendment if only applied to one race of people. The challenges to the law’s application will likely be based on the Historic Civil Rights cases and more recent cases about racial profiling in police stops.
While the majority of illegal immigrants are from Mexico, a recent PEW center study showed over the last year there has been a net gain of zero as more undocumented Mexicans are returning home than coming into the country. And a Department of Homeland Security document revealed that there were over a quarter million illegal immigrants from Canada, Korea, Ireland, India, Pakistan, the Philippines and Jamaica living in the United States. Yet, whether in Arizona or elsewhere, they won’t be subject to stops as much as those perceived to be of Mexican or Hispanic origin.
In any event, politically, whether struck down or upheld, it could be a win for the Obama administration in its reelection campaign. This decision, which is expected to come down this summer, would be in advance of the challenge to the Healthcare law which also risks being overturned.
The White House could use a loss to ignite pro-immigration supporters and make the argument to Latino and Hispanic voters and liberals that he would need to be reelected in order to counter the majority conservative Supreme Court. More liberal leaning justices Stephen Breyer and Ruth Bader Ginsburg are both in their 70s, though Ginsburg hinted last year that she most likely won’t retire until her mid 80s and 2016.
But since you can’t predict the future or the onset of health problems, he could argue better safe than sorry.