Artur Davis: The Court’s Mixed Decision on Immigration

If you’re scoring the Supreme Court’s Solomonic ruling on immigration, consider this counter-intuitive result: liberals who would be expected to cheer a ruling that wipes out much of Arizona’s controversial law have sounded strangely conflicted, and from the New York Times to the New Republic, have described the surviving component that allows local law enforcement to determine the legal status of individuals lawfully in their custody as everything from the “centerpiece” of the statute to “its most controversial” element.

It’s an odd approach to a legal victory. Heretofore, the most vocal concerns around SB 1070 (and copycats like the Alabama version) have focused on the blunt-force impact restrictionist statutes have on prototypical undocumented residents and their families: these laws make no bones about a pretty harsh sounding goal, expelling illegal immigrants from communities by rendering them virtually uninhabitable if you lack valid legal status. For example, Section 3 of the Arizona law, which made it a misdemeanor to lack valid immigration documents, and Section5(c), which made it a misdemeanor for an illegal immigrant to even seek work, had the straightforward purpose of pressuring illegal immigrants to move. To more liberal critics of these measures, the so-called “self deportation” strategy exudes a racial ugliness at worst, and a mean-spiritedness at the least.

But it does not require either compassion or permissive liberalism to recoil at the idea of states solving their illegal immigrant dilemma by kicking the problem next door. Arizona’s toughness, over time, would have almost certainly scattered more of its undocumented population to Colorado, California, or Nevada than Mexico. That entirely legitimate policy instinct may well have influenced the conservative swing justices, John Roberts and Anthony Kennedy, as much as the narrow legal doctrine of preemption that technically decided this case.

It’s revealing, from an ideological standpoint, that liberals have hesitated instead of embracing the Supreme Court’s coalition on Arizona, one of the few of its kind in this polarized court term, as a template for a political break-through on immigration reform. One can see in the outcome of yesterday’s decision and last year’s ruling upholding state penalties against hiring illegals an interesting spectrum: from the left’s resistance to marginalizing classes of people with a virtual social fence; to the populist right’s understanding that illegal immigration is a threat to American labor; to the establishment right’s preference for a consistency in the rule of law that won’t trade one border state’s interests for those of its neighbors, and will avoid the specter of de facto illegal immigrant havens in, say, Colorado and New Mexico being the eventual consequence of Arizona getting tough.

An eventual political outcome along those same lines might include legislation that doesn’t grant citizenship but creates alternative pathways to guest-worker status; that distinguishes between new, unanchored arrivals and family structures that have grown community roots; and that attacks corporate exploitation of low-wage illegal labor.

But that centrist model is not what liberal immigration advocates seem willing to settle for. In fact, the Administration’s opposition to a provision of the law that was reasonable enough to attract a unanimous court, including a liberal Latina Justice, speaks volumes about what an unfettered left-wing agenda on immigration might look like. Instead of some nuanced middle-ground, the end-game for the left is vulnerable to being framed as a disguised roll-back of deportation policies that are already on the book. How else to explain the Administration’s legal position that law enforcement officers have no obligation to inquire into the immigration status of the jailed, detained, or arrested, when employers are legally expected to make essentially the same inquiry about their work-force?  Why is one standard an invitation to profile, the other an uncontroversial feature of federal labor law?

More than a few conservatives suspect that the difference is that an employer who ferrets out an undocumented job applicant is extremely unlikely to pick up the phone and call immigration authorities.  A sheriff is a cinch to notify federal authorities of an illegal, and possibly deportable, immigrant in his jails. A legal regime that privileges the first inquiry and forbids the second is one that looks like a deliberate inconsistency, a new immigration based breed of “don’t ask, don’t tell” for local cops.

It’s possible to argue that past Congresses have made a muddle by turning immigration violations on the subtlest distinctions: illegal entry is a crime, but only a misdemeanor; remaining here illegally is not a crime at all; some, by no means all, additional offenses by undocumenteds are a basis for deportation; transporting illegals across the border is usually a felony, while hiring illegals is ordinarily not. But that maze of cross-cutting standards is not well understood by the general public, and preemption doctrine doesn’t make for much of a sound-bite in a campaign debate.  Democrats pushing for immigration reform are forced to find loftier ground, so they resort to higher-minded rhetoric about Ellis Island and inclusiveness.

That rhetoric, fails, though, when it lumps the sympathetic and the unappealing in the same grab-bag: in this case, extending at least as much energy worrying about suspected law-breakers in custody as is spent worrying about scorched earth restrictions against families who, heretofore, have spent a law-abiding existence in the United States.

It turns out the public seems to have its own carefully calibrated mindset around immigration policy–a blend of toughness and tolerance. It’s why the Dream Act, even the President’s just announced executive version of it, polls well but comprehensive amnesty can’t even command a Democratic consensus. It’s why the most restrictionist state laws haven’t caught on beyond a few jurisdictions, but why tougher enforcement of current deportation laws is generally popular.

This week, the Supreme Court seems to be aligned with the broad contours of public opinion (although the lack of knowledge of the specifics of the law will distort polling on the subject).  Democrats, in contrast, sounded out-of-sync: waxing indignant against the most defensible part of Arizona’s law, and seeming weak-kneed on the deportation of criminals.  The tone-deafness is almost shrill.

(Cross-posted, with permission of the author, from


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