In The News
AZ law wiped out as Supremes sing own tune
By Dominique Paul Noth
Editor, Labor Press
Posted June 26, 2012
Jan Brewer should share the psychedelic mushrooms being served for tea at her governor’s mansion. Nothing else could explain the press conference Monday when she came out and declared “victory” right after a conservative US Supreme Court declared unconstitutional the essential portions of her immigration law. She obviously didn’t read the surprisingly eloquent culmination of the ruling:
The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.
Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
No matter how you slice it, no matter how Justice Rush Scalia fulminated in lone dissent, Brewer and her policy of making illegal immigration a state crime was slapped down firmly, eliminating her effort to turn every state official into a deputized federal agent. The warning to other states and local officials was palpable – getting in gets in the way of the feds and makes you part of the problem. As President Obama quickly noted, it is time for comprehensive immigration reform by Congress to fix this, not Arizona’s mushroom soup.
The surviving Arizona element on a very thin thread is based on a Clinton era law encouraging ICE to share immigration status with local officials – as long as the federal government was assured ultimate authority. Yet there was confusion in the media coverage of the ruling.
The right exercised its media muscle by refusing to acknowledge defeat (witness Brewer trying to make defeat sound like vindication) but the Democrats and immigration activists were almost equally miffed. They couldn’t accept three-fourths of a loaf. They wanted all of “papers please” wiped away.
The court refused, pointing out that someone stopped for a violation other than immigration status, like a broken tailpipe, can be asked for immigration papers - though be careful what you do next because the court is watching.
Skeptics argue that the justices are too trusting in the face of a sheriff who promotes birther nonsense and police departments pushed by extremist policies. Editorialists also think too many Arizona elected politicians will use any excuse to find and get rid of illegal aliens and wanted these “stop and papers please” law to do it.
But the court was not totally blind to the political temper of Arizona, setting harsh limits on what could be done with the information, making it clear that if the stop was out of bigotry, racial profiling of simply to question immigration status, there will be further constitutional challenges. It said, simply, the police and the state courts should be given a chance to behave properly.
Speaking from a lay journalistic and not a legal perspective, the decision simply expressed the Supreme faith (pun intended) that police should be free to inquire. But the thrust of the decision was to halt any state from attempting to interfere with the federal government’s authority in this field – and Arizona law officers could face enormous consequences if they misuse the stop power.
The June 25 decisions weren’t a hint – except in an analytical sense -- of what to expect Thursday, when the court is expected to rule on the health care law. The court is clearly still concerned about not appearing partisan, which makes it hard to predict.
For instance, what many interpret as a liberal concern about locking juveniles up for life without any option found the court in agreement that this was excessive It declared unconstitutional for states to have laws that require judges to sentence juvenile offenders to life in prison without other sentencing options or the possibility of parole. What struck many as common sense brought a “hair on fire’ dissent from Justice Alito, who argued no other option was not “cruel and unusual” because we’ve done it to so many juveniles.
Yet in an unsigned opinion, the court June 25 further upheld its oppressive Citizens United ruling by overturning a law that everyone agreed had kept corrupt money out of Montana politics for a century. It ruled corporations could now make independent political expenditures, despite the state’s warning that unlimited floodgates would now open, despite reminders that the law protected Montana from just such corporate dominance of its legislature and, need we add, judges.
In so doing, it took away state rights -- even Scalia did – or at least a local escape hatch for “corporate money is speech.” But eliminating something that had long worked upheld the Citizens United ruling. The justices are clearly closing their eyes to the impact, because to this point that decision is destroying any sense of democratic balance in a country where one side has far more money and so much of politics depends on advertising power.
That Montana ruling came a week after a ruling that further unbalanced the money game in politics by further crippling unions, which many see as the only financial weight with its accumulated pennies against the combined wealth of the right.
On the surface the decision didn’t raise sparks and seemed routine. It said that unions must now allow workers to opt-in to special short-term assessments for political advocacy. But in effect that limits how public unions can raise money for their beliefs speedily in a 24/7 political world. And that forced slowness flies in the face of the main argument for Citizens United -- that both sides in a debate can raise money as they will and quickly.
In truth, the details of this ruling force unions to jump through hoops and delay political action. The unions now must get special permission from members for special assessments for political activity though corporations can say what they want in a political context without getting approval from shareholders or consumers. So no matter how much the US Supreme Court claims it is not partisan, real politics on the ground demonstrate that it is tilting balanced political speech.
It is also ignoring the hard evidence around it. The court may claim that “one person one vote” can stand up to unlimited right-wing cash but it surely sees how money is controlling politics and it is stepping on the gas, not the brakes, while crushing the opposition with its rulings. It will be hard for democracy to survive when money controls message.
No question the court still has a concern with nuances, as well as human issues when moral concerns inflame the public, but no question there are political players running the show. You cannot otherwise explain Scalia’s bench remarks about Osama’s immigration policies, which so contradict Scalia’s own opinions in fields other than immigration.
The court often justifies stepping in when it doesn’t perceive a national “political will informed by searching, thoughtful, rational civic discourse.” Somehow that weighs with incarcerated juveniles and immigration rules, but not with money in politics. (Maybe that’s what they mean by compassionate conservative.)
And that brings us to preview Thursday – unless the court punts, as some observers think it might – and a decision on the Affordable Care Act.
Nationally the health care law is slowly working well for millions as it heads for full implementation in 2014. Even Republicans like it in polls until they learn that what they like is “Obamacare.” So any deep attack on its improvements by the court could upset much of the economic gains and positive feelings.
Overturning the individual mandate could actually sweep Obama into re-election and completely revamp the health industry. The public could rise up and demand “Medicare for all” and “individual payer” rules, crushing the power of private health providers whom Obama worked hard to keep in the game.
The court’s political savvy as well as its legal savvy it about to be challenged. The Supremes love to parse and pick without seeming to play politics. But if they pick and parse this time while playing politics, the political firestorm may not be what conservatives are counting on.