Arizona’s Law, Activist Judges, Anchor Babies (a very good review of varying opinions)

July 30, 2010 § Leave a comment

NY Times July 30, 2010

By TOBIN HARSHAW

While President Obama’s odd characterization on “The View” of African-Americans as a “mongrel people” has set the blogosphere aflutter, it was something else he told the assembled ladies that struck me as more significant. According to Sam Youngman of The Hill, in a discussion on racism, “Obama noted ‘there’s still a reptilian side of our brain’ that leads people to not trust others ‘if somebody sounds different or looks different.’ ”Given that the president’s academic background is in Constitutional law and not evolutionary biology, we can forgive him if he’s unaware that the neuroscientist Paul McLean’s triune brain theory, which popularized the idea that the basal ganglia was a “reptile brain” constantly driving mankind toward his basest instincts, has long fallen out of scientific favor. But even when it in vogue, the idea was that something deep in our genetic makeup made us fear the unknown, not that we instinctively disliked the clerk at the 7-11 counter because of his accent.

A court ruling banning parts of Arizona’s new rules on aliens has put immigration at the front and center of the mid-term elections.

This is relevant, I think, not in the context of this summer’s many racially-tinged political dramas, but in relation to a judicial decision this week that was so widely expected it didn’t generate the attention it deserved.

“A federal judge on Wednesday blocked the most controversial parts of Arizona’s immigration enforcement law from going into effect, a ruling that at least temporarily squashed a state policy that had inflamed the national debate over immigration,” reported The Times’s Randal C. Archibold. “Judge Susan Bolton of Federal District Court issued a preliminary injunction against sections of the law, scheduled to take effect on Thursday, that called for police officers to check a person’s immigration status while enforcing other laws and required immigrants to prove that they were authorized to be in the country or risk state charges. She issued the injunction in response to a legal challenge brought against the law by the Obama administration.”

The Times’s Julia Preston put the ruling in broader context:

Although Judge Bolton’s ruling is not final, it seems likely to halt, at least temporarily an expanding movement by states to combat illegal immigration by making it a state crime to be an immigrant without legal documents and by imposing new requirements on state and local police officers to enforce immigration law …

The Arizona law stood out from hundreds of statutes adopted by states in recent years to discourage illegal immigrants. The statute makes it a state crime for immigrants to fail to carry documents proving their legal status, and it requires state police officers to determine the immigration status of anyone they detain for another reason, if there is a “reasonable suspicion” the person is an illegal immigrant. The mere fact of being present without legal immigration status is a civil violation under federal law, but not a crime.

This decision was a slam dunk,” was the verdict of Big Tent Democrat at Talk Left. “The basic point is that immigration status is exclusively the province of the federal government once it has occupied the field, as it has for centuries frankly.”

Not all liberals felt that way. Writing before the judge’s decision came down, Salon’s James Doty criticized the Obama administration for pushing the argument that the Arizona law pre-empted federal authority: “The preemption argument was always legally tenuous. Illegal immigration has unquestionably adverse consequences for local governments, and no moderate judge was or is likely to hold that any state effort to address the problem, however reasonable, is an intrusion on federal authority … the preemption argument rests uncomfortably with the Obama administration’s failure forcefully to advocate for any version of comprehensive immigration reform. It’s hard for a court to credit the argument that the field of immigration is reserved for federal action when the federal government so manifestly lacks a coherent immigration policy.”

Doty felt that a more promising line of attack was that taken by civil-rights groups suing the state, which emphasized the alleged hardships the law would place on immigrants:

The challenges filed by civil rights groups, on the other hand, are likely to meet with greater success. Bolton seemed persuaded by arguments that Section 2 impermissibly authorizes police officers to detain people, even where there is no reason to believe that they are in the country illegally. She also might enjoin Section 2 based on the comically vague and seemingly random list of factors that, according to Arizona’s police training board, give rise to “reasonable suspicion” of illegal status (for example, “dress,” “demeanor,” and “traveling in tandem”).

In the eyes of National Review’s Heather Mac Donald, Doty need not have fretted. The judge’s decision, she wrote, wasn’t about the particulars, but rather the Obama administration’s long-term intentions:

In enjoining Arizona’s landmark immigration law, U.S. District Judge Susan Bolton maintains the Obama administration’s carefully cultivated fiction: that what concerns the White House regarding S.B. 1070 is its effect on legal, rather than illegal, aliens. Almost nowhere in the government’s briefs or the judge’s ruling is the arrest and detention of illegal aliens addressed. This fiction is transparent, however. The real threat posed by S.B. 1070 was that it would disrupt the de facto amnesty that the executive branch has accorded to the vast majority of illegal aliens. It would start to implement congressional mandates and the public will that the immigration laws be enforced. For that reason, it had to be stopped …

Judge Bolton’s ruling regarding S.B. 1070’s provision on the possession of immigration documents verges on bad faith … As the judge notes, federal registration power is exclusive; Congress’s registration scheme may not be altered by the states. But nothing in S.B. 1070 changes the rules for registration; the Arizona law merely confirms those rules in state law. Judge Bolton alleges that the Arizona provision “alters the penalties” in the federal law, without disclosing that the Arizona law lowers them. She concludes without the slightest trace of argument that the Arizona document provision “stands as an obstacle to the uniform federal registration scheme and is therefore impermissible.”

Garrett Epps, writing at The Atlantic, couldn’t disagree more strongly: “DoJ’s argument was not about the rights of immigrants, legal or illegal, or even of American citizens: it was about the federal government’s prerogative to set the nation’s immigration policy, and about administrative burdens on federal agencies like the Border Patrol and Immigration and Customs Enforcement. The Judge agreed as to most of the law’s key provisions. Her opinion is technical and dry.”

Here’s his broader view:

That’s the central question in United States v. Arizona: whether a state can single out a group of people for harsh restrictions, criminalize those who help or employ them, and require law enforcement personnel to sniff them out and demand papers. One doesn’t have to be a fan of illegal aliens to believe that no one should be treated that way. I am a fan of judicial opinions that vindicate equality and dignity.

But I understand why those concepts are missing from a case that is almost certain to continue through a full trial on the merits, another District Court opinion, at least one appeal to the federal Court of Appeals, and one or more brushes with the Supreme Court. The real human issues will emerge over time, as witnesses come forward with their stories, experts produce statistics, and advocacy groups weigh in with amicus briefs laden with sophisticated discussion of history and political theory. Transcendent values will be discussed in the final order, and what is written in that opinion will be of great moment for the progress of American democracy.

Paul Mirengoff of PowerLine thinks that if the judge was really looking out for the interests of the downtrodden, she might have waited to see if those interests were really imperiled:

Judge Bolton based her ruling regarding harassment of lawfully present aliens in part on her view that the statute requires Arizona to determine the immigration status of every person arrested in the state. That may well be the best reading of the statutory language, but Arizona has repudiated this construction, arguing that immigration status must be determined only when there is a reasonable suspicion that a person arrested is an illegal alien.

Many judges might have accepted this interpretation pursuant to the practice of favoring the construction of a statute that avoids striking down a law as unconstitutional. Other judges might have waited to see how Arizona implemented the law before striking it down based on a construction Arizona has repudiated. Judge Bolton did neither.

Whether we feel Judge Bolton’s decision was ideologically contrived or not, there’s no question that avoiding politics on this one is impossible. So what does it mean for November? Hot Line’s Josh Kraushaar thinks that “for Democrats, it looks like a blessing in California (Boxer), Florida, Illinois (Kirk), Nevada (Reid) putting Republican candidates on the defensive in states with crucial Hispanic voting blocs. (Marco Rubio, in particular, has been straddling the immigration fence, hoping to rally support with both Cuban-American voters and rally the heavily-white conservatives along the Panhandle.)”

Steve M. at No More Mr. Nice Blog, however, is less sanguine about Democrats’ prospects:

I’m not convinced that this is a win for Harry Reid — in fact, I think it may be a life preserver for Sharron Angle’s campaign, which recently has been taking on water. All of a sudden the race isn’t going to be about her and her extremism — it’s going to be about whether “activist judges” can be free to overturn a popular law (very popular among whites) in a neighboring state. Angle wanted the race to be about Reid, and Reid has been succeeding in making it about Angle, but now it’s going to be about neither — it’s going to be about Obama. (Yeah, the judge in the case was a Clinton appointee, but, hey, what’s the difference?)

I’m not convinced that Hispanics in Nevada are going to turn out in droves to vote for Reid because an Obama strategy blocked implementation of this law. On the other hand, the right’s narrative, which is often persuasive to swing voters, is that Democratic presidents and Democratic members of Congress and judges appointed by Democrats are all one big hydra-headed beast, and the only way you tame the beast is to vote Republican.

Arizona’s law will hardly be the only immigration issue in the midterms, according to Politico’s Andy Barr:

Sen. Lindsey Graham (R-S.C.) announced Wednesday night that he is considering introducing a constitutional amendment that would change existing law to no longer grant citizenship to the children of immigrants born in the United States …

“People come here to have babies,” he said. “They come here to drop a child. It’s called “drop and leave.” To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”

Think Progress’s Andrea Nill is (kinda) mystified by the senator’s evolution on the subject:

Graham wouldn’t be the first lawmaker to introduce legislation that would dramatically alter the 14th amendment. However, similar efforts have been led by Congress’ right-wing demagogues. Graham is now also following in the footsteps of the rabidly right-wing Arizona state Sen. Russell Pearce — the sponsor of SB-1070 who plans to “target the mother” by going after the “anchor baby racket.” A few months ago, Graham introduced a framework for immigration reform with Sen. Chuck Schumer (D-NY) that included a path to legalization for undocumented workers. In March, Graham walked away from the table, calling immigration reform “dead” after health care reform passed. Since then, Graham has joined his fellow Republicans in defending Arizona, blocking immigration reform, and calling for an enforcement-only approach.

Some on the right are equally critical of making “anchor babies” the issue, including The American Conservative’s Michael Brendan Dougherty:

Overturning birthright citizenship doesn’t bring order or justice to America’s decades long problem of illegal immigration. There may be good reasons to think that overturning it would do little reverse illegal immigration, and much to prevent assimilation.

In any case, Graham’s re-framing of the immigration issue in one of the silliest and most counter-productive possible and his chosen method signals that he is not serious. Constitutional amendments are almost impossible to pass, especially in this age of gridlock and ideological sorting of parties. In other words, this is a stunt …

Whether Graham is serious or not, there’s little doubt that immigration is going to be a potent issue in the fall, in a way it never was when President George W. Bush irked his own party by trying to bring it to the forefront. So why now? “Historically, in times of economic recession, anti-immigrant legislation has incited racial fear,” wrote Jesse Jackson at Huffington Post. So there you have it — it’s the economy, stupid, playing on our reptilian brains.

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