My latest Verdict column offers a thus-far-overlooked ground
for the Supreme Court to rule for the federal government in Arizona v. United States, the pending
case that will resolve whether Arizona’s S.B. 1070 is preempted by federal
immigration law. I argue that the
Supreme Court’s endorsement of a version of the “unitary executive” theory in Printz v. United States in 1997 implies
that even when a state voluntarily undertakes to enforce federal law, if that
“assistance” is unwanted by the federal executive, then the state’s actions are
forbidden by the “take care” clause of the Constitution. In this view, Congress’s attempt to authorize
states to provide assistance that the federal executive does not want would
amount to a violation of separation of powers.
As I explain in the column, I myself don’t like the unitary executive
theory but the Court’s conservatives do, and thus this line of reasoning should
give them grounds for ruling for the U.S. and against Arizona.
Do I think that will actually happen? Probably not.
For one thing, I appear to be the first person to have raised the
unitary executive issue, so the Court could say the issue isn’t presented. For another, the argument leads to a result
that appears to be contrary to conservatives’ ideological druthers, which these
days run anti-illegal immigration. Here
I want to ask why that is.
Not all conservatives favor cracking down on illegal
immigration. In particular, businesses
that employ cheap immigrant labor like lax enforcement of federal immigration
laws. Undocumented immigrants work for
low wages and are reluctant to insist on their labor rights and other rights,
for fear of deportation. Accordingly,
business groups such as the U.S. Chamber of Commerce have tended to oppose
state efforts to crack down on illegal immigration.
In addition, the Republican Party does not want to appear
anti-Latino, given the increasing electoral importance of Latino voters. Former President George W. Bush understood
this dynamic as Texas governor, but Bush was unable as President to move the
national Republican Party.
There remains an obvious explanation for anti-illegal-immigrant
sentiment among conservative (and a fair number of not-so-conservative) voters:
In hard economic times, undocumented immigrant workers (and immigrant workers
more generally) are a convenient scapegoat for the scarcity of jobs, even if
the jobs taken by undocumented immigrants are those that Americans generally
don’t want (and even as illegal immigration has declined). In this view, anti-illegal-immigration
sentiment is a mostly bottom-up phenomenon, with demagoguing politicians simply
pandering to that sentiment.
Reflecting on the bottom-up character of anti-illegal-immigrant
sentiment leads me to think that in an important sense, our democracy is in
reasonably good shape. “Hunh?” you
say. Well, here’s the thing: Both Mitt
Romney and Rick Perry, when governors, had reasonably humane immigration
policies (to the extent that states can have immigration policies), but each
has tried to run away from his record in the GOP primary race. In a similar way, both Romney and Newt
Gingrich supported a health insurance “mandate” until very recently, but both
have denounced “Obamacare” as part of their respective efforts to secure the
Republican nomination. These shifts indicate that Republican voters are able to
shape the candidates’ policy views to their liking, rather than simply having
their views shaped by the candidates.
Now one could argue that this sort of voter primacy is
unhealthy for a representative government, and I would find that argument
attractive. But in an era when we worry
that money corrupts the political process, it should count for something that
people get what they want in the way of policy from their candidates, even when
those with money (here, the business community that wants lax immigration
enforcement) want the opposite.
Not much of a silver lining, I know, but you play the cards
you’re dealt.
