In Arizona case, court doesn’t betray its alleged ideological gap

Oh, that zany, right-wing Supreme Court.

Liberals have been working themselves into a frenzy about the possibility that the court’s four conservative justices and the less-predictable Anthony Kennedy will overturn the 2010 federal health-care reform, a.k.a. Obamacare. Such a ruling figures into two of the “5 Signs of a Radical Change in U.S. Politics,” according to The Atlantic’s James Fallows. “Court packing,” the idea of adding justices to the court which was last threatened by Franklin Roosevelt when the court wouldn’t accept as constitutional some of his New Deal programs, is already being suggested on the opinion pages of the Washington Post.

Other commentators have warned — presumably for the benefit of any justices who might peruse their columns or blogs — that the court risks discrediting itself if it rules in a way that just happens to go against President Barack Obama. Unexplained is exactly how and why this discrediting will occur, given that majorities of the public across partisan lines deem the law’s individual mandate unconstitutional.

So it must have been bewildering for some of these hand-wringers to find Kennedy and the court’s conservative chief justice, John Roberts, joining three of the liberals Monday to overturn much of Arizona’s controversial immigration law. (The fourth liberal, Elena Kagan, had argued the case as U.S. solicitor general and recused herself from it.)

For political junkies, there’s no buzz-kill like a busted narrative.

Oh, some people’s favorable reactions to Monday’s judgment were more muted than they might have been, were there not a potentially disagreeable (to them) ruling waiting to be released Thursday. For both the left and the right, the bigger prize is the Obamacare ruling, with its conceivably far-reaching implications for the federal government’s power over the individual. But the Roberts-Kennedy alliance with the court’s left wing on the Arizona ruling means we’ll see even more partisan contortions of logic than usual should the court strike down all or part of Obamacare.

Not that the Arizona case doesn’t carry its own import, both in practical terms and for the everlasting tug-of-war between federal and state powers and responsibilities.

In Arizona, the court recognized an extremely limited role for states when it comes to immigration policy. The court’s majority deemed even states’ enforcement of federal immigration law to be out of bounds if it could lead to state prosecutions the feds might have forgone. This, the court reasoned, could infringe on the federal government’s “control over enforcement” and the “integrated scheme of regulation” Congress had created. Never mind that Arizona created the law because the feds’ “control over enforcement” has been poor and Congress’ “integrated scheme of regulation” ineffective.

The only contested section of the law not overturned concerns the requirement for police who have arrested someone to check that person’s immigration status if there is reason to believe he might be in the country illegally. The court essentially said state courts must interpret that part of the law — does it apply equally to jaywalkers, who might be detained longer than usual for an immigration-status check, and drunk drivers, who probably wouldn’t? — before it could consider challenges. Which means that part of the law stands to be curtailed, at least, as well.

In one particularly head-scratching element of the ruling, the majority found that states could not impose criminal penalties on illegal immigrants seeking employment because federal law named only civil penalties. “There is no more reason to believe that this rejection was expressive of a desire that there be no [criminal] sanctions on employees,” Justice Antonin Scalia wrote in a dissent, “than expressive of a desire that such sanctions be left to the States.”

Or as Justice Samuel Alito put it: “With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate pre­emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power.”

As it happens, I have my own misgivings about parts of the Arizona law. Having lived and traveled in “show me your papers” countries, I see no place in a free society for police to stop anyone on the street just to ask if he’s legally present. (This differs from a status check of someone arrested for another reason.) And state solutions to illegal immigration are almost always going to be inferior to federal ones.

That said, states bear the brunt of working under ineffective federal immigration policies. It is understandable why Arizona — and Georgia, among others — felt compelled to try something new when Congress will not. And I find it hard to justify barring states from being more diligent enforcers of federal law than the feds have been.

So there are many things to say about the Arizona ruling. That it reflects an immutably ideologically divided group of judges, well, that is not one of them.

– By Kyle Wingfield

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