When Good Politics Is Bad Policy and Bad Law

The Supreme Court heard oral arguments today in the case Arizona v. United States, the federal challenge to Arizona’s immigration law, considered draconian by its foes and obvious by its defenders. You can’t draw hard and fast conclusions about how the justices will rule based on oral arguments but the day did not go well for the Obama Administration. This might add fuel to the fire that some have been building about the virulently political rightwing bloc of the Court but for one tiny detail. The presumably liberal justices don’t seem to be buying the Obama Administration’s arguments, either:

“What could possibly be wrong,” Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr., with Arizona officers simply checking the status of someone detained and giving the information to the federal government.

If the federal authorities do not wish to invoke deportation proceedings against the person, Roberts said, they don’t have to.

Justice Antonin Scalia went further, sharply questioning Verrilli about whether a state has the ability to “defend its borders.”

Justice Sonia Sotomayor told Verrilli that the government’s argument that “systematic enforcement” might violate federal law was “not selling.”

Lyle Denniston adds:

If the Court accepts the word of Arizona’s lawyer that the state is seeking only very limited authority, the state has a real chance to begin enforcing key parts of its controversial law — S.B. 1070 — at least until further legal tests unfold in lower courts.

Since Justice Elena Kagan has recused herself, a vote of 5-3 would be required for Arizona to prevail. A vote of 6-2 or greater would defuse attacks on the decision on the basis of ideological bias. Based on the admittedly shaky grounds of the oral arguments that is, at least, a possibility.

To my untutored layman’s eye the federal government’s argument appears to be that it can have its cake and eat it, too. The Congress can pass and the president can sign laws and then, if enforcement or even simple management is too burdensome, it can merely ignore them. That strikes me as a political argument rather than either a policy or a legal one. Congress should either authorize the resources necessary to enforce the laws it passes or limit their scope so that they can be enforced with the resources they’re willing to grant.

This brings us around to the title of my post. On immigation the Congress has chosen the path of political least resistance by in theory having fairly strict immigration law while in practice having very limited immigration law. That doesn’t make any sense either from a policy or legal standpoint.

Just to restate briefly my views on immigration I don’t think we have an immigration problem in this country. I think we have a temporary problem of Mexican immigration in this country, temporary because of Mexican demographics and, indeed, Latin American and Caribbean demographics more generally. I think that we should increase the number of work permits available to Mexicans by at least an order of magnitude, possibly several orders of magnitude, give employers better tools for verifying the status of the workers they hire, and thereafter enforce immigration laws strictly in the workplace, imposing severe penalties on employers who refuse to comply. But, honestly, I’m not worried about the issue because, as I’ve said, it is temporary and the recent stories about immigration from Mexico slowing or even reversing recently fully support my view.

I’m skeptical about businesses who’ve designed their business models around a continuous flow of unskilled or semi-skilled workers but that’s a subject for another post.

If Arizona prevails in any of its basic points it could be a severe blow to the Obama Administration. How could progressives have been so wrong? Assuming your opponents are bigoted idiots, the law could not possibly be on their side, and that ideological bias is the only possible explanation for finding in favor of Arizona makes one lazy.

11 comments… add one
  • Drew Link

    I’d like to associate myself, and broadcast my agreement with, every last gd word of this essay. I would simply note:

    “I’m skeptical about businesses who’ve designed their business models around a continuous flow of unskilled or semi-skilled workers but that’s a subject for another post.”

    Me too, but my brother in law is in the ag business in S Florida. All Haitian workers. Just be prepared to pay more for your ta-may-ters. Not saying that’s wrong. Just saying these are the trade offs in the real world.

  • Brett Link

    Wouldn’t the cut-off of cheap, illegal agro workers just spur the mechanization of agriculture again? There are some steep capital costs for that stuff, but god knows farmers generally have enough political pull to get governmental support for the transition (if it happens).

    You can draw illegal workers from elsewhere, but it’s not as convenient as Mexico.

  • PD Shaw Link

    I think the legal problem is that the SCOTUS has assumed in the past that states are not taking direct means of combatting illegal immigration, like refusing to educate the children of illegal immigrants is odious. (Plyler v. Doe, 1981)

    Oddly, DOJ is not arguing that there is a racial/ethnic profiling issue at this stage, which seems to be the most frutful line of attack. I wonder if they’ve decided that’s an “as applied” problem, instead of a “facial” problem with the law. If so, they probably should have waited, because I suspect most of the law will be upheld and it will probably encourage other states to pass those portions.

  • PD Shaw Link

    @Drew, if tomatoes get too expensive, the federal government can require all employers to buy tomatoes for their employees. Problem solved. 😉

    @Brett, I’m thinking some of the produce might be better green-housed; in that way, you can extend the growing season and rely on annual labor, and not the need for a ton of seasonal labor for a few weeks. I’m not a big fan of subsidizing an economic activity that isn’t worth much, but Alabama should be made to pay the crop loss when it “changed the rules” in the middle of the growing season. That was pretty unconscionable.

  • Drew Link

    Drew, if tomatoes get too expensive, the federal government can require all employers to buy tomatoes for their employees. Problem solved.

    Why stop there? I saw him on Jimmy Fallon last night. I say, free education, free tomatoes, free houses, free beer…..aw, to hell with it, free everything!!,!,! Let the rich pay for all of it and then we all party like its a bacchanalian weekend!

  • My husband has basically been on boycott for thirty years. He grows and cans his own.

  • But he cain’t do nothin’ with a bell pepper.

  • michael reynolds Link

    Dave:

    A blow to the Obama administration? Hah. According to recent polls Arizona is in play and these laws motivate the hell out of Hispanic voters.

    The fact that the Supremes find for the law in no way alters or affects the motives of those who passed the law or perception of same. If DADT or DOMA are constitutional does that change the perception of those who backed it? Nope. Did Dred Scott change perceptions of slave owners?

    Brett:
    Cut off cheap labor and we’ll actually manage to offshore agriculture, one of our remaining health industries.

    I’m with Dave on creating a more rational framework for foreign workers, but make no mistake: without Mexicans we do not grow fruit or vegetables in this country.

  • We offshore things already. Unless you’re a locovore you didn’t buy that kiwi or cherry from the US.

  • michael reynolds Link

    Yeah but the bananas are local right? Right? From the Iowa banana fields?

  • A blow to the Obama administration? Hah. According to recent polls Arizona is in play and these laws motivate the hell out of Hispanic voters.

    I really wonder whether there is such a thing as the Hispanic vote.

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