Political update for July, 2012

You know, as much as I’ve grown to enjoy politics, something I hated with a passion as a young man, it is nice sometimes not to think about it during an election year for a while. I went away for just a day or so this past week, and then when I came back home this weekend, there was no power and no water due to a powerful storm on Friday night (both restored two days later, to my great relief) and, I’ve been packing. So, no computer, no tv, no news for about three to four days. And, I didn’t miss it at all. Turns out, there really was nothing much to miss on a quiet weekend.

But, some stuff did happen the past week in the Supreme Court that will have long term ramifications and which I find especially interesting. First, last Monday, the court decided the big immigration case out of Arizona (Arizona v. U.S.) and then Thursday morning, as I was getting read to leave to go away, they released the decision in the even bigger healthcare case (National Federation of Independent Businesses v. Sebelius, but aka, Healthcare/Obamacare/Affordable Care Act - case). By “bigger,” I mean according to the media and perhaps public opinion. But, politically, because Hispanics are deemed so important in the upcoming election, that decision will potentially have more immediate impact.

Immigration was arguably a draw, but I will give a slight win to the conservatives. Healthcare was a clear victory for liberals. I’m going to talk about the immigration case today, because I read it, and will write about the healthcare case shortly.

Most coverage of these cases are very political, with virtually no analysis – maybe one theme or holding about what happened. Thanks to the internet, of course, you can also find knock down, drag out analysis, which will rattle your brains. I hope to chart a middle ground – an explanation that will tell you what happened in some detail, but not so much that the bottle of brandy on your counter starts talking – “Don’t you want me?”  I can’t promise simplicity, but I hope simpler.

 
Arizona, obviously on the Mexican border, has taken the brunt of the problems from illegal immigration from Mexico, mostly because of increased crime and drugs. Many there believed that the federal government had fallen down on the job of enforcing and Arizona passed its own immigration law, rather short, being just 16 pages, which mostly just gave Arizona officials the right to enforce the federal laws, plus a few additional powers. The federal government challenged the law as interfering with their supremacy in the immigration field. Other than healthcare, it is probably the most significant case of this term.

Unlike some other tough cases though, this one was not likely to really change the basic law. The constitution gives the federal government control over naturalization. Coupled with its control of foreign affairs, this has been deemed to place it in charge of immigration in general, with supremacy over the states. And, at various times, congress has passed various immigration schemes of differing intensity, giving the states more or less room to act themselves. There has never been serious doubt that the states also have some power with respect to immigration, where it is not excluded from it by congress, either expressly or implicitly. And, by implicitly, it is meant that congress so dominates an area, that even if it doesn’t directly say so, we can see they meant to completely control it. When it does that in an area which it has power under the constitution, the Supremacy Clause means the states can’t contravene or interfere with it, though they often have some room to do their own thing.

The question was, of course, did Arizona interfere with congress’s own immigration laws or “scheme” by trying to enforce them itself. Central to it was section 2(B) of the act known as S. B. 1070 or just 1070),  the so called “Show me your papers” provision, by which officers who were stopping someone for certain reasons, could, under certain conditions, be able to restrain the person if they have a reasonable suspicion that they were in violation of federal immigration law. I’ll get back to this.

But, there were three other provisions at stake too. Section 3 created a state misdemeanor for failure to complete or carry required federal registration documents.

Section 5(c) creates a new law, one not based on federal law, forbidding an alien who isn’t authorized to either work, apply for work, or solicit work in a public place. The solicitation part is clearly aimed at stopping gatherings of Latin men looking for work by standing in parking lots or roadside, waiting to be picked up by construction companies or even home owners needing men for a project.

Section 6 allows officers to arrest suspects without if the officer has probable cause to believe the person has committed any offense that makes him/her removable from the United States.

The court “split the baby,” which was the take away political headline for the media. Justice Kennedy, who most often determines who wins and writes the majority opinion for the court when there is a polarization, did write this opinion, but the split was different than usual. Not only was he joined by the “liberal” contingency – Breyer, Sotomayor and Ginsburg (Kagan recused herself for this case, but almost certainly would have been in agreement), but also Chief Justice Roberts. But, with regard to 2(B), the most controversial provision – all eight judges agreed it was constitutional. They disagreed over the other three.

The “show me your papers” provision (2[B]) basically says that Arizona officers must make a “reasonable attempt” to determine the immigration status of any person they stop on a legitimate basis if they have “reasonable suspicion” that the person is an illegal alien  and cannot release them until they have the person’s immigration status checked. They would do this in the standard way, by checking with the federal agency, ICE. That sounds very dramatic, but there are a few precautions. First, a driver’s license or similar i.d. is a presumption of citizenship or permission to be here. Second, the officers are not allowed to consider “race, color or national origin” except as permitted by the federal and Arizona Constitution[s]. And, third, they are mandated to follow the federal law of immigration and “protect. . . the civil rights of all persons and respecting the privileges and immunities of United States citizens.” 

Many people have argued that the law cannot truly be implemented in this fashion (that is, without considering ethnicity and with protecting civil rights) and is made specifically to target Hispanic citizens. Despite the press coverage though, the case was not argued on these grounds, but strictly on pre-emption grounds – that is, the federal law so covers the field, that these state laws conflict with and invade their province. Very loosely put, the federal government is arguing that these are complicated laws and that the federal government has to take a lot into consideration in enforcing them, including their relationships with other countries, like Mexico (which, ironically, has much stronger immigration laws than we do). Consequently, Arizona's own aggressive attempt to make it warm for illegals would be interfering with them.

In short, the court sort of punted the ball down the field in its decision with respect to this provision, holding that, as this provision hasn’t gone into effect yet, it was premature to speculate on how it will be enforced and whether federal concerns about prolonged detention without sufficient reason are valid.

But, the court also found that the other three provisions were significantly different. Section 3, where Arizona created a misdemeanor for failure to carry papers, was determined to interfere with federal law because it would allow Arizona to charge people for a crime where the federal government’s policies at the time might be opposed to pushing them out. Moreover, the Arizona law ruled out probation, something the federal crime permitted. Consequently, the section was struck.

With respect to section 5(b), which made it a crime for an illegal alien to apply for, solicit in public, or actually work, the court also found it interfered with the federal scheme, as it made criminal something the federal government has determined not to be a crime. I’ll note, that like so many complicated laws, the federal laws often seem to make no sense. So, while it is a crime to illegally cross the border, it is not to actually a crime to be here or work.

And, section 6, which permitted warrantless arrests of anyone the officer believes has probable cause (more than “reasonable suspicion,” whatever that means in real life) committed an offense that would have made them removable from the United States, was also struck as interfering with the federal scheme, which actually itself determines when state officers may arrest someone.

I very, very generally like the outcome of the case, though I can’t agree completely with the majority or, the dissenters. I'll give my opinion at the end. But, in general, no violence was done to the general idea that immigration is in the control of the federal government, as most everyone agrees makes sense (that is, having 50 or more immigration laws would make it near impossible to have any immigration policy), but also continues to allow the states to participate in it to the extent where it interferes with the feds. The court at least made legitimate arguments why the three “unconstitutional” laws were so and left the main section intact, because the federal government’s argument seems speculative about how it would be enforced.

This will, of course, come back again on the grounds that Arizona is actually discriminating against Hispanics. This will be based on the fact that those restrained while their immigration status is checked are, of course, going to be overwhelmingly Hispanic, given Arizona is a border state, and in Mexico, they are almost entirely Hispanic. You would think, if the law is fairly applied, that who it affects due to circumstances outside of its control should make no difference. But, years ago it was determined not just in a general way, but actually made part of our federal law, that not just discriminatory intent was unlawful, but also discriminatory impact. And, mark my words, this will be the argument used in Arizona - since it is primarily impacting Hispanics, it is therefore unlawful.

Justice Scalia wrote the what may consider the major opinion for those concurring and dissenting (Thomas and Alito, joined him). It took a vastly different approach from the majority, to some degree seeking to revolutionize our constitutional immigration law or, as he would have it, return it to its roots. According to Scalia, the three provisions which were overturned, should not have been, because our history shows that states had equal rights, based on their sovereignty, to control immigration within their borders alongside the federal government's more general right. But, I thought his authority supporting his main thesis was very weak. It is based almost primarily on a letter from James Madison and two references to Article 1 of the constitution which forbid certain activities by the state but makes exceptions where necessity would seem to require it. I’ll spare you the details, but you can find it in the 5^th and 6^th paragraph of his opinion if you want to look.

No one doubts that the states do possess some sovereignty. Nor has anyone suggested the states do not have the right to protect itself in cases of actual invasion or the like (covered expressly in the constitution). He does not seem to rationally consider that there was not a complex federal immigration scheme in early America as there is now, or that immigration issues in general are far more complex now than they were then. More, no doubt that at the outset of our nation, many people considered their state to be an actual separate country joined in a union – the federal government and other states being foreign countries. Now, few take that position. Even state rights advocates and most Texans and Alaskans see themselves as Americans first. People move about now whereas in the 18^th and early 19^th century, they sometimes never left the area surrounding where they were born, at least until the advent of the train. It's a very different world.

Scalia accepts that the Federal government has the right to concern itself with immigration – not because of anything the constitution say, but because it is a sovereign nation and controlling your borders goes along with that. But, because he takes the sovereignty of the states more seriously than many others on the court, he has a much larger view of state sovereignty. “Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.”

I know what Justice Scalia believes this case comes down to, because he says: “What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. . . .”

In other words, he is arguing that once the Federal Government decides who it lets in, the states can treat them as it would anyone else (though, even illegal immigrants, he reminds us, are protected by the Bill of Rights).

For me, that is too simple a line to be drawn and virtually ignores the Supremacy Clause. Though Scalia was on the bench when the Rehnquist Court was turning back a liberal decades long tide of destroying state sovereignty by restoring some of the states' sovereignty, it clearly was not without end, and must make sense in terms of our federal system. Allowing states to decide who may sue them (a right of a sovereign power which the Rehnquist court fortified and the one example Scalia gives) is different than states deciding immigration issues, because it affects not just the litigants in the suit against the one state, but our country’s foreign affairs and even what happens in other states. It is, rationally, a national issue.

Justice Thomas and Justice Alito also wrote opinions dissenting in part and both made some sense to me. Thomas’ opinion was, in my view, more persuasive than Scalia’s. He summarizes his short opinion thus at the beginning and the end:

“I agree with Justice Scalia that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. . . (‘Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict’ . . . .

 . . .

Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they ‘stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ . . . I have explained that the ‘purposes and objectives’ theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. . . . Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. . . Thus, even assuming the existence of some tension between Arizona’s law and the supposed ‘purposes and objectives’ of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis.”

What Thomas is saying (and, yes, I am being presumptuous in unstilting his language) is that when courts are deciding whether state laws are pre-empted by federal laws, they have to look at the actual laws to see what congress and the states intended, not “federal objectives” or the supposed intent of congress as “divined” by the judiciary. This is certainly consistent with his judicial philosophy and also makes some sense to me. Where I believe he is wrong, is in not finding that statutes that give increased penalties for federal crimes or create crimes based on federal law, are inconsistent with federal law. I believe they conflict in this case, anyway, though perhaps not in other circumstances. But, I probably would agree with him that section 6, which allows for arrest upon probable cause that someone has committed a removable offense under federal law, and without a warrant (my guess is, more often than not, drugs or domestic violence) is not conflicting with federal law so as to be said to be interfering with it. Warrants are very often not necessary when there is probable cause that someone have committed a removable offense – that goes back to the founding and even previous to it. I do not see how this conflicts with federal law at all.

Last, Alito also made an argument with some sound reasoning, but would have split the baby even more so than the majority. He agrees with the majority on the “show me your papers” provision, as did all the justices, but also with respect to section 3, because the states cannot add to the federal government’s registration scheme by simply adding penalties to it. However, when it comes to sections 5(c) and 6, he “parts ways.” That’s because they concern employment, which is undoubtedly a traditional “police” power of the states. Relying on De Canas v. Bica, which was one of the majority’s two central cases, he argues that “[b]ecause state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C) . . . []or . . . 6.”

Here he raises a valuable point. The law has recognized that a supposed conflict between state and federal law often rises and falls on what it is the state is legislating about. Regulating employment is a police power. But, he runs into a road block. While perhaps the law should always recognize that this is a traditional state matter that the federal government should not interfere with, the feds long ago won this battle. In the past century, the courts, wrongly in my opinion, began freeing the federal government to insert itself through its reading of the Commerce Clause, into traditional state areas – including employment. This is why we now have federal laws regarding minimum wage or limits on hours or child labor laws, etc. His point is, when it is a traditional state function that congress is legislating about, they must at least clearly (expressly?) state their intention to pre-empt state action, or the states are free to do what they want.  

So, how would I rule? Not quite with any of them. I would agree with the unanimous finding in favor of the “show me your papers law,” but also with Justice Thomas that with respect to the section concerning permission to arrest when there is probable cause the suspect has committed a removable offense, but not with respect to the other provisions, the state law does not really conflict with the federal law. Despite the appeal of Alito’s argument, though employment is in fact a traditional state police power, the Supreme Court has really gutted prohibitions against the federal government intervening in almost any area it wants, with very little in the way of limitation. So, my position is somewhat in the middle of the two basic positions.

Politically speaking, the case is interesting for several reasons. First, everyone knows that the Hispanic vote is very important this year. This will mostly go to Democrats anyway, but the conventional wisdom is that Romney needs 35% of it to win. Right now, it looks like he is at about 25%. Of course, an analysis need really be done for the highly contested states, where it matters most. I give the Republicans/conservatives some credit here on principle. Knowing full well that the anti-illegal immigration position could lose them the big enchilada as well as many state or local elections, they have persevered nevertheless in their position. On the other hand, the Democrat/liberals have made more of a bargain with the devil, being willing to accept illegal immigration to a large extent because they know that the votes will run in their favor. Thrown into the mix, of course, is the paradoxical fact that this administration has done so much better a job of deporting illegal aliens than previous administrations, and for that, Obama deserves credit.

The real story here and in the healthcare case is twofold. First, particularly with healthcare – have we continued down a path of government control over our lives from which it will take untold agonies and ruined lives to get out from under? More steps towards the financial oblivion any serious person can see coming? Amazingly, despite defections from some economists in the government, despite some big companies refusing to provide healthcare anymore, despite the administration having to give waivers to others just so that they continue – it will still be argued by the government that the “affordable” in “Affordable Care Act” is not a misnomer, signifying the opposite. And, as the Act goes into effect now, it is going to get worse. Naturally, the government will blame the companies, but, even forgetting now the constitutional issue, in my humble opinion you cannot micro-manage a huge market like this with untold regulations and expect companies to prosper. It is sort of like trying to skip rope with a million instructions in your head about where to place each body parts as you spin the rope. You will get tangled up very quickly and success will start to me measured in meaningless “best practices” and statistics rather than good health care and low costs.

But, the even bigger story is Justice Roberts. And, because Justice Kennedy also signed the majority opinion, joined by all the liberals – and in one part by everyone – Roberts signing on in the Arizona case doesn’t seem like a big deal. But, his defection on healthcare to stand with the liberal wing is a big deal and apparently, has caused a huge personal rift betwee him and the conservatives on the court. I have no problem with political defections. I like them. But, this one fits a predictable template that is worrisome. For a few years I have wondered and even written about what Justice Roberts thinks about this really being the Kennedy Court, instead of his own. In fact, he is neither the decider (Kennedy), or even the most prominent voice on his own wing (Scalia, arguably). One way to take prominence on the court would be too move over to the other side, giving him much more impact – (“See, even Justice Roberts thinks so and he’s a conservative.") This might be very unfair to the chief justice, as his “defection,” might actually be political courage. But, at least one journalist claims to have two sources inside the court (including one or two justices?) which might indicate otherwise. I’ll revisit this after I discuss healthcare on another day (and I'm cutting off Bear's predictable rejoinder - "Please, for the love of God - don't.")

Okay, last thing, completely off topic. Whatever the media is selling right now, I think President Obama is winning the only thing worth winning at the end of the day - the electoral college race. New York and California are huge advantages, very tough to overcome, and I don't see it yet. It's a very complicated speculation, and I'm guided more by my feelings than by a state by state analysis. Arizona, which can be spun as a win, and especially the healthcare case,  will only help him. I am not one of those people who always thinks everyone else likes the guy I like - I am rooting for Romney. But, if I were betting, right now I like Obama's odds.