Thursday, May 20, 2010

Don't pin your hopes on lawsuits, redux

Back in March, I posted Obamacare opponents, don't pin your hopes on lawsuits, listing reasons why not to expect the Healthcare reform to be overturned in court. Now I think the same must be said to opponents of the Arizona Immigration law.

I was prompted to reexamine my assumption that SB 1070 was unconstitutional by something President Obama said in the joint press conference with President Calderon- he said that he was instructing the Justice Department to "...look very closely at the language of this law to see whether it comports both with our core values and existing legal standards as well as the fact that the federal government is ultimately the one charged with immigration policy." Did you notice what is different about that from what other members of the administration like Eric Holder, Janet Napolitano, and Michael Posner and P.J. Crowley of the State Department said? President Obama didn't say it was unconstitutional. Given that all the others mentioned admitted that they have not read the law, and the President sounded like he had, I began to wonder if the President was using more circumspect language because he wasn't so sure it would be overturned.

That caused me to do a search for a legal opinion of the law that was written by someone not involved in the suites against it, and I found I may indeed have been wrong in my assumption that it is unconstitutional. Here is an article from The Jurist: Arizona's Immigration Law: Constitutional, But...
JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says Arizona's controversial new immigration law appears to be constitutional, at least on its face, but the state must be scrupulously careful to avoid even the appearance of any kind of discrimination against Hispanics...."
From the The Washington Times: "WINN: Arizona law will triumph in court
Constitutional challenges have little support in case law... John Winn teaches business and constitutional law at Shenandoah University in Virginia. He served in the Army Judge Advocate General's Corps from 1985 through 2005, including five years on West Point's law faculty."
From The North County Times (a San Diego newspaper): "REGION: Three USD professors say Arizona law is constitutional Arizona's controversial new immigration law probably would withstand legal challenges on constitutional grounds, according to a panel of three University of San Diego law professors."

If you're as surprised as I was, here's the short form of the argument: the federal preemptive power only matters if the state law is in conflict with the federal law; states make laws identical to federal laws all the time, and the courts uphold them. Reading that, I remembered a USA Today story from yesterday about a court decision in banking law: "In a partial victory for banks, the Senate on Tuesday overwhelmingly passed an amendment that would largely prevent states from writing new laws to protect consumers from questionable financial products even if no federal law exists. However, the measure preserves states' authority to enforce federal rules." (my emphasis) Does the Arizona law agree with federal law? Well, reading the law, I saw that every section uses the federal statutes for definitions and procedures. In fact, in fifteen pages of actual text, federal law is referenced eighteen times! There are other points discussed, but you're better off reading the professors than my interpretation of them. The net is that there's an excellent chance the law will be upheld in the courts. And they didn't say it that way, but it seems a near certainty that it will be upheld with whatever minor changes the courts might demand.

If upheld, it is another certainty in this climate that other states will in fact pass such laws- and not just the seven states already considering it; here in Indiana there are at least two state senators waiting only for the court results to introduce similar legislation, and I'm sure many other states are doing the same.

This suggests to me that going to Arizona and protesting will have more impact than boycotting. On one hand, winning the hearts and minds of voters seems the only way to stop the promulgation of the law if it is constitutional. On the other hand, if that many states do pass the law, we might wind up boycotting so many venues that the only place left to hold a GA is Oaxaca. Assuming we have our papers in order, of course.

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