A mere “bump in the road” is how Governor Janice Brewer described the jolt that a judge delivered this week to Arizona’s new immigration law. Actually, it’s more like a head-banger.
She should be out buying heavy-duty shock absorbers for the long trip to the U.S. Supreme Court and beyond.
Unlike the polarized screaming taking place beyond the courtroom, her order neatly and calmly divides the law’s good parts from its bad, identifying the provisions that will likely pass constitutional muster, those that probably won’t, and those nobody’s arguing about.
She made the unremarkable observation that state laws that roll over federal immigration policy violate the Constitution. And this law had lots of that going on. While supporters of the law took the biggest hit, neither side got everything it wanted. The Justice Department had hoped to have the entire law suspended. It didn’t argue against every provision individually, at least for now.
Left intact, because the feds didn’t challenge it, is the odd provision that lets citizens sue if they think local or state officials aren’t doing enough to enforce immigration law. And Bolton wasn’t asked to rule on whether the law would encourage racial profiling.
You would think conservatives would applaud a judge for a ruling that the Constitution means what it says -- in this case, that immigration matters are the province of the federal government. But no, there’s little cheering from the political right. On this issue, they’d rather complain about illegal immigrants and the Obama administration than stick to constitutional principles.
On the other side, you’ve got some critics who inflame the debate by likening the law to Nazism.
The truth is, illegal immigration is a huge problem, and it’s possible for states to enact perfectly constitutional immigration-related laws. Arizona’s isn’t one of them.
Take, for example, the provision that would force all state and local law enforcers to try to verify the immigration status of everyone they stop, whether for jaywalking or murder, if they suspect the person is in the U.S. illegally. All those inquiries from Arizona would overburden U.S. immigration authorities, forcing them to siphon resources away from higher priorities, the judge wrote.
And, to paraphrase my mother, what if every state did what Arizona wants to do? Immigration and Customs Enforcement would have to grow an extra arm to handle all the traffic.
The state also overstepped its constitutional bounds, the court ruled, by making it a state crime for immigrants to leave home without their registration papers, and another crime for illegal immigrants to solicit work.
Congress, not the Arizona legislature, gets to decide whether that sort of conduct is criminal. The Supreme Court said so in 1941, when it struck down a Pennsylvania law requiring annual state registration for non-citizens.
Perhaps Brewer’s optimism about the road ahead is based on the path so far of another Arizona immigration law. It says the state can lift the business charters of employers who hire illegal aliens.
The U.S. Chamber of Commerce and civil-rights organizations, interest groups that are often at odds, joined forces to challenge that law, which is similar to laws in 28 other states. The district court and the 9th U.S. Circuit Court of Appeals have both sided with Arizona. Might that signal that the 9th Circuit will support Arizona’s more recent and more contentious law?
Don’t bet your passport on it. For one thing, Congress specifically said states could use their licensing laws to press businesses not to hire illegals. The question is whether Arizona went too far.
Nor is it a good sign for Arizona that the 9th Circuit ruling is in jeopardy. The Supreme Court has agreed to take up the case in its next term. This doesn’t necessarily mean a reversal, just a chance of reversal.
It won’t be anytime soon that the high court will decide whether the new law should stand. Arizona has only a temporary injunction to appeal, not a ruling based on full briefing and argument on the merits.
It could take years for that to happen. Stephen Yale-Loehr, who teaches immigration law at Cornell University, points out that the immigration law on the court’s next calendar was enacted in 2007.
For Arizona, “It’s going to be a long, hard battle,” he said. The road ahead looks bumpier.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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