Immigration Issue Poses a Complex Test for 2 Parties/ A Law Facing a Tough Road Through the Courts

Immigration Issue Poses a Complex Test for 2 Parties
By ADAM NAGOURNEY
Copyright by The New York Times
Published: April 27, 2010
http://www.nytimes.com/2010/04/28/us/politics/28immig.html?th&emc=th


WASHINGTON — Senator John McCain of Arizona took to the Senate floor the other day to embrace a tough new Arizona law giving the police the authority to detain people they suspect are illegal immigrants. Mr. McCain, long an outspoken champion of giving illegal immigrants a path to citizenship, is facing a primary challenge this summer from a conservative who backs tough immigration measures.

This week, Senator Harry Reid of Nevada, the Democratic majority leader, abruptly announced that the Senate would take up an immigration bill to address both enhanced border security and citizenship, even in the face of daunting odds. Mr. Reid also faces a tough re-election battle, and his advisers believe that Hispanic voters in Nevada could prove key to his re-election.

The immigration flare-up that has engulfed Washington has emerged as a political challenge for Republicans and Democrats alike as they struggle to deal with the complexities and emotions of an issue that is scrambling party and geographic lines.

On Tuesday, two prominent Republicans in Florida, another state with a big immigrant population — Jeb Bush, the former governor, and Marco Rubio, a candidate for the Senate — expressed reservations about the Arizona law, even as other Republican lawmakers supported it.

In the short term, Mr. Reid’s vow to tackle immigration legislation this year could hurt some Democrats in the fall elections, causing problems with voters who view immigrants as competition for tough-to-find jobs and illegal immigration as a drain on social services, analysts from both parties said. That could especially be a problem for first- and second-term Democrats representing blue-collar states particularly hard hit by the recession.

But the Republican Party could face long-term risks if it is identified with legislation cracking down on illegal immigration at a time when Hispanic voters are emerging as an increasingly large and engaged part of the American electorate. The Arizona law has enraged many Hispanic groups, who see it as a form of racial profiling.

“Immigration is the most explosive issue I’ve seen in my political career,” said Mark McKinnon, who was a senior adviser both to Mr. McCain and to President George W. Bush, who also supported giving illegal immigrants a path to citizenship.

“This is an issue on which Republicans salivate over short-term gains without much thought to the longer-term damage it will do the party,” Mr. McKinnon said.

But, he said: “Arizona may force the Democrats’ hand to push for immigration reform. Unfortunately, an election year is the worst time to move good public policy on this issue.”

Both parties agree on the need for better border security. But each also has to balance how to deal with illegal immigrants already in the United States against the desires of powerful constituencies. These include Hispanics who would like to see many illegal immigrants given a chance to become legal, employers who rely on the cheap labor they provide and working-class voters who see undocumented workers as threats to their jobs and wage levels.

For all the recent talk about moving ahead on an immigration bill, it appears unlikely that Congress will act this year, especially since no Senate Republican now seems willing to work with the White House on the issue. Mr. Reid said he would bring up energy and climate change legislation first, leaving it unclear whether the Senate would have time to tackle immigration this year.

And there is no evidence that Democrats have the votes to get anything through. Senator Lindsey Graham of South Carolina, who has been the leading Republican advocate for changing immigration laws — filling a gap left by Mr. McCain — announced the other day that he would not support acting on immigration this year. He said Mr. Reid was making a mistake in trying to push something through.

The Arizona law has brought the issue to the fore more than any other factor. President Obama has denounced it, as have many civil liberties groups and a smattering of Republicans. In an interview with Politico on Tuesday, Jeb Bush said: “It’s difficult for me to imagine how you’re going to enforce this law. It places a significant burden on local law enforcement and you have civil liberties issues that are significant as well.”

To a certain extent, the White House has reason to be glad Mr. Reid is pushing an issue of such concern to Hispanics, a critical part of Mr. Obama’s base in states like Nevada in 2008 and a group Democrats hope to energize in the fall. Even if no bill gets through the Senate, the Democrats can highlight their support for dealing with the issue.

“It’s easy for Democrats to demagogue and try to use this as a wedge issue,” said Senator John Cornyn, the Texas Republican who is chairman of the National Republican Senatorial Committee. “It’s a very sensitive subject. A third of my constituents in Texas are Hispanic.”

“But what I’ve found is that my relationship with them is not based on a single issue,” Mr. Cornyn added.

Mr. Obama, traveling through Iowa on Tuesday, said that the Arizona law amounted to harassment and that it raised the urgency for a new national immigration policy. But he said any plan needed to have bipartisan support. “The only way it’s going to happen is if Democrats and Republicans come together and do this,” Mr. Obama said.

But the obstacles to passing legislation are substantial, particularly at a time of high unemployment and violence on the Mexican border involving drug dealers.

“I think it’s going to be extremely difficult for an immigration bill to pass this year,” said Senator Mary L. Landrieu, Democrat of Louisiana.

Some Democrats said the prospects for a legislative deal might be better in 2011, particularly if the jobless rate drops and Hispanics continue to mobilize and grow as an electoral force.

“We’re going to work very hard to get comprehensive immigration reform as soon as possible,” said Senator Charles E. Schumer of New York, the No. 3 leader of the Senate.

Mexico Warns Citizens

MEXICO CITY (Reuters) — Mexico warned its citizens living in or traveling to Arizona that they could be “harassed” there because of its new immigration law.

The foreign ministry issued a statement saying that Mexicans there should contact their consular representatives if they are unlawfully detained. “Until it is clearly defined under what criteria, when, where and who the authorities will check, you should assume that every Mexican citizen could be harassed and questioned without cause at any moment,” the statement said.

Jeff Zeleny contributed reporting from Ottumwa, Iowa, and Carl Hulse and Ashley Southall from Washington.



A Law Facing a Tough Road Through the Courts
By JOHN SCHWARTZ and RANDAL C. ARCHIBOLD
Copyright by The New York Times
Published: April 27, 2010
http://www.nytimes.com/2010/04/28/us/28legal.html?th&emc=th


Can Arizona’s controversial new immigration law — allowing the police to stop people and demand proof of citizenship — pass constitutional muster?

To many scholars, the answer is, simply, no.

“The law is clearly pre-empted by federal law under Supreme Court precedents,” said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona’s effort to enforce its own laws is destined to fail.

But even some experts who say they are troubled by the law said it might survive challenges.

“My view of the constitutional question is that it is unconstitutional,” said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. “But it’s a far cry from predicting empirically what a judge who actually gets this case will do.”

Whether any challenges to the Arizona law succeed could come down to the perception of judges about whether it competes with federal law.

To Kris W. Kobach, the law professor at the University of Missouri-Kansas City School of Law who helped write Senate Bill 1070 and many other immigration measures around the country, the key issue is “concurrent enforcement” — that is, whether the state law parallels federal law without conflict.

Because the Arizona statute draws directly on federal statutes concerning documentation and other issues, “the Arizona law is perfect concurrent enforcement,” Professor Kobach said.

The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants’ rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, “will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant.”

President Obama criticized Arizona’s bill last week before it was signed, calling for a comprehensive immigration overhaul as an alternative to such “misguided” efforts. He also asked the Department of Justice to “examine the civil rights and other implications of this legislation.”

On Tuesday, Attorney General Eric H. Holder Jr. said the department was considering several options, including a federal court challenge.

The major issue in those challenges will be whether federal law should trump state action.

“The closer the law comes to the traditional federal role,” said Juliet P. Stumpf, an associate professor of law at Lewis & Clark Law School, “the more likely it is that the state law will be considered to be trespassing on the federal government’s domain.”

The new law, Professor Stumpf added, “sits right on that thin line of pure state criminal law and federally controlled immigration law.”

The courts have rebuffed state efforts through pre-emption in the past. Californians passed a voter initiative in 1994 that denied social benefits to illegal immigrants; a federal district court judge struck down the law in 1997 and the state later dropped its appeal.

Arizona has already won one challenge to a different immigration bill: the United States Court of Appeals for the Ninth Circuit has upheld a 2007 law that penalizes businesses that knowingly hire illegal immigrants. Federal law is not settled, however, and a similar law in Hazleton, Pa., was struck down by a federal judge.

An opinion in the appeal of the Hazleton ruling to the United States Court of Appeals for the Third Circuit is pending. Such conflicts, once they work their way through the appeals courts, often attract the interest of the Supreme Court.

The new law is controversial even within Arizona. Its critics include the attorney general, Terry Goddard, a Democrat running for governor. Mr. Goddard called the law a “tragic mistake” that “does nothing to make us safer.”

Mr. Goddard, however, has the obligation to defend it in court as the state’s chief lawyer. He said he would probably recuse himself, and enlist Mr. Kobach for the defense, as he did in the case involving the 2007 law.

Even if the new law is found constitutional on its face, critics suggest that when it is applied, it will lead to abuses that will be deemed unconstitutional. “I think it’s an inevitable consequence of the law,” Mr. Motomura said.

Grant Woods, a former Arizona attorney general who opposed the bill, agreed, saying, “People will be profiled because of the color of their skin.”

Mr. Kobach said the courts had long given the police broad authority to stop people and to make immigration arrests — and asserted that the bill “expressly prohibits racial profiling,” because it stated that officers “may not solely consider race, color or national origin.”

Julie Pace, an Arizona lawyer who brought suit challenging the 2007 law, issued, with her colleagues, an analysis of the new law arguing that “the word ‘solely’ makes this purported anti-discrimination provision an authorization to allow racial profiling and discrimination, as long as the government is not 100 percent racially motivated.”

Stewart A. Baker, a former Department of Homeland Security policy official who worked on immigration overhaul in the Bush administration, said fears of the new law were overblown.

“The coverage of this law and the text of the law are a little hard to square,” Mr. Baker said. “There’s nothing in the law that requires cities to stop people without cause, or encourages racial or ethnic profiling by itself.”

Nonetheless, Michael A. Olivas, a professor at the University of Houston Law Center and a member of the board of the Mexican-American Legal Defense and Education Fund, predicted that the new law would fall.

“At the end of the day, we will prevail, and will get these things struck down as the constitutional jokes that they are,” Professor Olivas said. “It is regrettable — but it’s so over the top that it may very well galvanize people.”