An NBC News/Wall Street Journal poll shows Romney is trailing the President 69% to 22%. That's not as bad as the 70 to 14% spread seen in last month's Fox News poll, but it's still horrendous and pretty much will kill Romney's chances in November unless there are massive changes in the more general polls.
Despite Romney's efforts to distance himself from the anti-immigration rhetoric of the primaries, he'll have a tough time. The Supreme Court hearing of Arizona v. United States today, the decision sometime in the next few months, Democrats holding hearings and dragging people like Russell Pearce to the Hill, the refusal of Kris Kobach to quietly disappear, and a lot of Romney statements on camera will give the President plenty of opportunties to remind Hispanic voters of Romney's extraordinarily stupid decision to try and run to the right of his opponents on the immigration issue. Unfortunately, he can't get the 35+ million Hispanic US citizens to self-deport.
Most know that the Arizona SB1070 "show me your papers" law has finally gotten to the point where it will be argued before the highest court in the land. The law was partially enjoined by a US District Court judge and that judge's decision was upheld by the Ninth Circuit Court of Appeals.
The challenge does not cover all parts of SB1070. Rather, the following four enjoined parts of the law are being reviewed:
- Section 2(B) allows police to ask for a person't immigration documents and determine if "reasonable suspicion" exists that the person is unlawfully present in the United States.
- Section 3 creates a new Arizona crime for persons who fail to carry their federal "registration" papers documenting their immigration status. The penalty is is up to 20 days in jail for a first violation and 30 days for later violations.
- Section 5(c) makes it a crime in Arizona for immigrants not authorized to work to apply for work, solicit work in a public place or actually work within Arizona. Violators can be jailed for up to six months and subject to a $2500 fine.
- Section 6 allows police officers to arrest immigrants (lawful or not) if they believe they are deportable (such as because they have committed a crime outside the state or have been previously incarcerated but not deported.
The biggest issue being considered is whether the Arizona law is preempted by existing federal immigration law. In other words, does the Arizona law interfere with the federal government's ability to carry out enforcement and administration of the country's immigration laws. A preliminary issue that will be considered is who bears the burden of proving that federal rules preempt the Arizona law - Arizona or the federal government. Who wins that argument will have a much easier time winning the overall preemption question.
Arizona will need to show that it has the inherent authority to arrest people for violating federal immigration law while the US government will try to show that this authority only exists when Congress authorizes cooperation with federal officials.
The federal government will also argue that the Arizona law disrupts the federal government's enforcement efforts by requiring it to expend resources on low priority cases such as non-criminal matters. Furthermore, the jailing of immigrants who ultimately turn out to have permission to be in the US could have negative foreign policy consequences (e.g. the jailing of Mercedes and Honda executives in Alabama could negatively impact on foreign trade). Outside immigration groups have also argued in amicus briefs that local police may not enforce federal immigration law even when their actions are consistent with federal priorities.
A couple of things to note about the case. First, not all aspects of the Arizona law are being challenged and there are other cases in the pipeline. Also, there are five other states with similar laws to Arizona, but they are not identical and each will have to be examined separately to determine what the Court's decision will mean. For example, the Alabama law's provision requiring the checking of the status of students is not in the Arizona law and not on trial. But the case will likely have a major influence on other cases where preemption is an issue.
Second, Justice Kagan has recused herself from the case presumably because of her prior role as the federal government's chief lawyer. That could mean a 4-4 decision which would result in the current injunctions standing and a Supreme Case not being able to give a green or red light to similar laws in other states.
Third, if the court rules for Arizona, this will not stop individual cases challenging the application of the law. Also, Congress could override the Court by changing the law. Remember, this case is about preemption, not the constitutionality of the Arizona law itself.
Fourth, if the Court rules against Arizona, the impact will depend on the scope of the decision. Saying the Arizona law violates preemption is important and would thwart a lot of the copycat efforts. But saying that states are Contitutionally barred from making or enforcing immigration measures - even when authorized by Congress - would have a much more dramatic effect.
The Immigration Policy Center has an excellent FAQ regarding the case that can be found here.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.