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.