As expected, the Supreme Court has decided to weigh in on Arizona’s illegal immigration law- SB 1070. As most are aware, the law was signed into effect by Governor Jan Brewer and was immediately challenged in federal court by Holder’s Justice Department. The District Court then issued an injunction against certain sections of the law and the very liberal Ninth Circuit Court of Appeals has upheld the injunction. They found that the Arizona law was preempted by federal immigration laws. Without any argument, Congress has the enumerated power to establish uniform laws of immigration and naturalization. However, it is one thing to write and pass a law and quite another thing to actually then enforce that law. The lack of enforcement is what forced Arizona to take legislative action because Arizona is, by any stretch of the imagination, one of the primary entry points for illegal immigrants. The strain on their social services, infrastructure and, most importantly, law enforcement forced Arizona to take action.
I have written extensively on immigration in the past, sometimes sympathetically in support of immigrants. Extreme rhetoric on the Left and the Right have no place in a discussion of realistic reforms. And I have have repeatedly argued that there is no reason why immigration reform cannot occur alongside and simultaneously with improved border security measures and enforcement efforts. The attitude of “this first” or “that first” is best left on the kindergarten playground. That being said, I have also argued that “the more boots on the ground,” the better. Those boots can be the National Guard, the local Patriot groups, ranchers, Border Patrol agents, ICE agents, unmanned aerial drones, etc. In fact, a true commitment to enforcement would adopt a policy of “all of the above.”
In the case before the Court, four sections of the law are being contested. The first is Section 2(b) which allows law enforcement officers who have reasonable suspicion that a person is in this country illegally to make a determination of that legality by asking for appropriate identification. Speaking of extreme rhetoric, some on the Left have likened this aspect of the law to Nazi Germany tactics. However, it is a fact that immigrants, since the 1950s, have been required to carry appropriate identification attesting to their legal status in this country. That law was implemented by Harry Truman. Using this liberal logic, does this then make Harry Truman a Nazi? Naturally, since the bulk of illegal immigrants in Arizona are Hispanic, there is a fear that law enforcement will target Hispanics in particular for identification. However, the State has taken incredible pains to prevent and deter racial profiling. Additionally, the request must be based on a reasonable suspicion. Is it reasonable to request ID of Representative Grijalva? Of course not. Is it reasonable to ask ID of a group of Hispanics hanging outside a Home Depot at six in the morning? Maybe. Is it reasonable to ask ID of a Hispanic driver with a tail light out? Of course it is. I personally find it ironic that no one on the Left objects to policies or even laws that require one to show ID to purchase alcohol or cigarettes, or even conduct a credit card transaction, but by the same token they object to ID checks for something infinitely more important like whether the person is in this country legally. It defies logic AND THAT is unreasonable.
Section 3 makes it a crime punishable by a fine or jail sentence for anyone who willfully refuses to carry ID. All the state is saying here is that if you are in the country legally, you should have the appropriate ID to prove it. This ection simply puts teeth into the law. The key part, to me, is deliberate refusal to carry ID. Look at the analogy from traffic law. There is a separate offense for people who fail to carry their license or registration when operating a vehicle. Sometimes this is by accident- you forgot your wallet in the other pants. In most cases, the primary offense is taken care of the “failure to carry” offense is overlooked, as I suspect would happen in Arizona provided the person CAN produce ID.
Section 5(c) basically states that if you are in the country illegally, they cannot work or seek work in Arizona. Duh!! Seems rather self-explanatory. And the Circuit Court’s reasoning in their opinion is confusing here. They determined that Federal immigration law is designed to deter and inhibit employer exploitation of illegals. The State of Arizona’s law is simply designed to keep it from ever getting to that point. It is true that federal immigration policy changed in the 1960s under Johnson in response to employer abuses. Furthermore, Reagan’s IRCA in 1984 specifically targeted employers with fines, not employees or potential employees. Here, it is quite possible that the State may not prevail given stated and historical Congressional intent in enacting these reforms.
Finally, Section 6 allows police to make an arrest without a warrant with probable cause if they believe a person has committed an offense for which they can later be deported. This section is problematic for the State to defend on a coupe of levels. First, when it comes to arrests without warrants, we are starting to get into possible violations under the 4th, 5th and 6th Amendments of the Constitution and the Court will apply strict scrutiny in order to analyze the law. Here, the STATE would be under an obligation to justify the law instead of less onerous options and their reasoning has to be overwhelmingly convincing. Simply saying “We have an illegal immigrant problem in Arizona” will not suffice. Secondly, the state of the law is in flux not only with respect to immigration law, but criminal law in general. Just this term, the Court heard a case where the government argued that an inadvertent case of tax evasion, but tax evasion nevertheless, was a case of “moral turpitude” and a violation as a deportable offense. The Court reasoned otherwise. Also, the definition of what a “felony” is differs from state to state and between states and the Federal government. While the Court has upheld state “three strikes” laws, the definition of what constitutes a “strike” is still heavily litigated.
Predicting any Court decision is full of pitfalls although one can get a decent indication of the leanings of Justices from oral arguments. In this case, the government is arguing total preemption under Article I, Section 8. They also argue that if states like Arizona, and now others, start to regulate immigration matters, no matter how well-intentioned or the extent of the problem, it tangentially affects the federal government’s ability to conduct foreign policy. On the other side, and if Arizona sticks to the philosophy and is not tricked out of it by the Liberal wing of the Court, if the state argues they are merely “helping” the federal government in their enforcement efforts, they stand a greater chance of prevailing in whole or part. And they have a case. Speaking of Congressional intent, Congress has on many occasions adopted programs where they have incorporated local and state law enforcement. With immigration, the entire 287(g) program where local and state police are trained by the Federal government in immigration enforcement is a testament to the Federal-State cooperative paradigm. Because Obama and Holder have gutted the program does not negate Congressional intent. In fact, the program has proven quite successful where used.
In the end, it is most likely that the decision will be a little for the State and a little for the Federal government. I believe the documentation requirement will be upheld and the “willfull refusal” provision, since it involves Due Process concerns, will have to be modified on remand. I believe the worker provision will be struck down based on Congressional intent arguments with Kennedy siding with the Liberal wing of the Court and that Section 6 will be struck down quite convincingly. In the end, the major portions of the law will be upheld and the preemption arguments overcome and the law construed as a furtherance of federal law. If the State can adequately and correctly make their case, then they can convince the ultimate swing vote- Anthony Kennedy.

The single act that broke the camel’s back and galvanized the Tea Party into electoral action was the passage of the Affordable Care Act, more commonly known as Obamacare. Some in the Democratic Party have objected to the term “Obamacare” as being derogatory. However, if you want to lay claim to it as your signature piece of legislation, it is quite hypocritical for your Party cronies to now cry wolf, or racism. Everyone knew that at some point the law would reach the Supreme Court. The fact that the Court has scheduled 5-1/2 hours of oral argument over three days underscores its importance. It shows the gravity and importance of the situation, its effects, but most importantly, its constitutionality.
One of the biggest obstacles- Elena Kagan- has recused herself from the decision. There is no doubt that in her capacity as Solicitor General she afforded advice on the legal intricacies of the law to the Administration. This leaves an 8-member Court to decide the fate of the law. Equally important, it represents a technical blunder by Team Obama/Holder. Since the main argument and objection to the law- the individual mandate- was struck down by the 11th Circuit and this case originates out of that Circuit, a 4-4 ideological split in the Supreme Court would let stand the decision of the 11th Circuit and the individual mandate would be, in effect, unconstitutional. It is a lot easier to get four votes than it is to get five.
Arguments will begin at the end of March. The decision should be handed down in June in the midst of a Presidential election. Taking the issues presented in turn as they are argued, first up is the legally arcane but equally important part of the act which later directly links to the individual mandate. Specifically, it involves an old law called the Anti-Injunction Act (AIA). That law asserts that no court can issue an injunction against a tax until someone actually pays the tax or suffers a harm under the tax. During the debate over health care reform, the Obama Administration, in its efforts to sell the law to the public, took great pains to stress that penalties for failing to purchase health insurance were not a tax under the traditional meaning of that word. In fact, the justification for the law was under the Commerce Clause, not the government’s taxing authority. To the people to whom it would apply, it amounts to $650 or 2.5% of income, whichever is greatest. If it smells like a tax, chances are it is a tax and when you “assess” the “penalty” based on income levels and have the IRS collect the penalty, it stinks even more like a tax. In fact, that is what the Obama Administration now wants everyone to believe because the AIA would then prevail and these suits would be null and void since no one suffered any harm, nor was anything “collected” from anyone.
However, the IRS has no enforcement powers in this area. They cannot take you to court for payment, threaten you, accumulate interest and penalties on non-payment of the penalty, or place a lien on your home or garnish your wages. There are no civil or criminal penalties involved. About the only thing they can do is reduce or take away your refund. When the law was litigated in the lower courts, suddenly the Holder had a legal epiphany and determined that the penalty was a “tax” and that the AIA then prevents these suits. In other words, courts can take up the issue in 2015 when the first penalties were assessed. Originally, the case out of the 11th Circuit did not address the AIA aspect of the case. However, the Supreme Court resurrected the issue in the Fourth Circuit. It is strange that they would do this and suggests that perhaps they are leaving themselves a political “out” in this case.
The second and central issue is the individual mandate itself. In 2014, all Americans should have health insurance or pay a penalty. Since most people obtain it through their employers, that leaves three other classes of people: those eligible for Medicare/Medicaid, those in health insurance exchanges with subsidies, or those who simply choose not to purchase insurance. For them, payment of the penalty would be a cheaper option. The government asserts that they have the right to require health insurance under the Commerce Clause. While it is true that they have this power, the law here is essentially requiring that people enter into and participate in commerce- or else. Ever since the New Deal, the limits of the Commerce Clause have been pushed to the limits where, perversely, an individual’s decision not to participate in commercial activity is engaging in commerce and can thus be regulated. Unfortunately, along the way some conservative Justices (Scalia and Thomas) have used this liberal reading of the Commerce Clause to justify conservative policy outcomes, most recently in a case involving the growing of medicinal marijuana for personal use.
This aspect of the case represents the best, most visible way to check Congressional power under the Commerce Clause. If they can mandate, using this “nexus theory,” then there is virtually no area where the government cannot regulate by invoking the Commerce Clause. Somehow, I do not think that is what our Founding Fathers had in mind when they drafted the Constitution. However, there are several Court precedents that should give every conservative pause here.
The third issue is severability. The law lacks this clause probably due to an oversight in their haste to pass the law. These clauses state that if one aspect is ruled unconstitutional, the remainder of the law remains in effect. This was a major topic of debate in the District Court hearings in the Fourth Circuit. However, even though Judge Hudson raised and argued the issue over several days of arguments and he ultimately deemed the mandate unconstitutional, he never addressed the issue of severability. Hence, on appeal to the Circuit Court, there was no need to address the issue, yet now the Supreme Court brings up the issue again. There are cases where laws lacking a severability clause have been upheld, the most recent case involving Sarbanes-Oxley. One should have pause here since the Court dedicates ninety minutes of argument to an issue they again resurrect.
The final issue is whether Congress exceeded their authority in contradiction of the Ninth and Tenth Amendments. Here the states argue that forcing Obamacare on the individual states under threat of losing Medicaid funding is a broad, frontal attack on state sovereignty. The issue leaves teh area of Congressional authority under the Commerce Clause and enters the more broad area of federalism. This is a more fundamental issue where this Court can lay claim to an area that has long escaped concise interpretation. One of those present at the Constitutional Convention- Benjamin Franklin- viewed it thus: states were to be the “incubators of democracy.” It was at the state level that experiments would be conducted to solve the perceived ills of the population. What worked could be implemented or improved upon elsewhere and what failed would be discarded. States were to be in competition with one another and democracy as a whole would be the better for it.
By challenging Obamacare in this legal atmosphere, the states are saying “Enough already!” In two recent cases tangentially related to the 9th and 10th Amendments, the Court has sided with the states over the Federal government. The first involved environmental law and was local in scope. However, the second involved the Brady Bill where the federal government dictated that local and state law enforcement actually enforce certain aspects of a federal law. In the current case, forcing states to accept Obamacare in whole under threat of losing Medicaid funding is clearly more encompassing than requiring local enforcement of federal gun laws. It is a clear infringement upon an historical state function. Still, the use of the carrot and stick to force states into compliance has been done before, the 65 MPH being a recent example.
The decision will most likely center around the individual mandate and Congressional authority under the Commerce Clause. Ironically, the wild card here is Scalia, one of the Court’s most conservative members. Unfortunately, he has boxed himself in with his decision in the marijuana case. If principled, he would have to follow through and rule in favor of the mandate thus shifting the decision to 5-3 to overturn the 11th Circuit’s decision and therefore allow the mandate. Perhaps that is why Roberts added the other questions of the AIA and the Ninth and Tenth Amendment challenges to the law. Here, he can go two ways assuming Scalia bolts to the other side. First, he can rule that Congress did overstep its bounds under the Ninth and Tenth Amendments and issue a sweeping decision upholding state’s rights over encroachment by the Federal government. Assuming he gets the votes (a 4-4 decision upholds the lower courts and the Federal government would prevail), then Roberts can place his imprint upon his tenure. The other way he could go, assuming Scalia bolts, is to take the argument originally set forth by Holder and rule that the penalty IS a tax and then invoke the AIA. In other words, he pulls an Obama and kicks the can down the road. On the issue of severability, he creates another “out.” Should they rule 4-4 on the mandate and thus invalidate it, a ruling against severability would let the remainder of the law stand. This would be the most likely path taken. In short, assuming they get by the AIA hurdle, the mandate will most likely be ruled unconstitutional in a 4-4 decision, the severability issue will be resolved most likely 6-2 allowing the remainder of the law to remain in effect, and the lower courts will be upheld 4-4 on the federalism issue and Congress can deny Medicaid funding. It is a little bit for everyone- the most likely outcome. If Roberts really wanted to stick it to Obama and Holder, they would reject the AIA argument, rule the mandate unconstitutional, then rule the entire law void due to the lack of the severability clause, then stick a knife in the Administration’s heart and rule for the states under the Ninth and Tenth Amendments. Unfortunately, he is only one of eight deciding these cases.

While we are concentrating on the GOP nomination battle and all that entails and the drama towards the big prize in 2012, the Supreme Court has taken on a trio of cases that are highly politically charged that may have more far-reaching effects than who wins in 2012. In the first match up, Justice Scalia has accepted and placed on the docket a case involving redistricting in Texas as a result of the 2010 census. As most are aware, Texas gains four seats in the House (and 4 electoral votes). Scalia handles urgent appeals from the 5th Circuit.
To bring one up to date, after the 2010 census, Texas was assigned four additional House seats. Redistricting efforts were approved by the Republican-controlled State legislature affecting the state district boundaries and those of the Federal Congressional districts. Almost immediately, they were challenged in Federal court by Hispanic interest groups and Democratic operatives. They argued that the new districts were drawn to minimize the influence of the growing Hispanic population in Texas.
That may very well be the case, but what is of paramount greater interest here is that the District Court in San Antonio basically threw out the maps drawn up by and approved by the Texas state legislature and drew their own map. Under Section 5 of the Voting Rights Act of 1965, states with an obligation (Texas is one of them) have to submit any election changes to the Justice Department or District Court in DC for approval. Texas opted to go the judicial route and asked for a summary ruling which was denied with the understanding the issue would go to a hearing in DC. Unfortunately, the DC court said that if it failed to approve the legislature-passed plan, then it would be up to the San Antonio court to do that. Instead, that court drew up new maps in the interim pending approval from Washington. Texas objects to these maps as an intrusion on state sovereignty and Scalia essentially, by taking the case, ordered a stay in implementation of the maps pending a Supreme Court hearing on the issue.
The problem is that Texas holds their primary on March 6 and there are currently no established Congressional districts until the court rules. Argument is set for January 9, 2012. In a very real way, the expediency of the situation is akin to BUSH v. GORE from 2000. Unfortunately, these challenges before the Supreme Court are rare since reapportionment occurs once every ten years. Texas is relying upon a 1982 per curiam (unsigned) decision which basically asserted that a Federal District Court had overstepped its authority in drawing legislative boundaries. However, in that same decision (ironically, out of Texas), the District Court was under an order from another court and the Justice Department who determined that two of Texas’ then-existing proposed districts were problematic under the Voters Rights Act. They were later adjusted to the satisfaction of all. In that case, all but two districts were fine. Also, in that case, there was a court finding of “discriminatory effect.” In the current case, there is no finding of “discriminatory effect” since the Federal court in DC has not even held a hearing yet AND the entire map was redrawn by the court in San Antonio- not just two districts.
Even more importantly, Texas has upped the ante now in their filings with the Supreme Court by calling into question the validity of Section 5 of the Voters Rights Act of 1965. Specifically, they argue that it is a gross infringement on such a fundamental state function and state sovereignty as to how they conduct elections. Whether the Supreme Court even reaches that issue remains to be seen.
The practical effect of the San Antonio court’s maps is that they essentially create three Hispanic-majority districts. By creating these districts, it necessarily caused surrounding districts to be adjusted and then the entire map. Presumably, this would mean that the Hispanic districts would vote Democratic. In fact, under the state-drawn maps, Republicans would gain three seats in Congress according to most experts. Under the court maps, Republicans would gain only one seat.
Without a doubt, political gerrymandering seems to be a blood sport every ten years at the state level. For example, the Democratic legislature in Illinois redrew boundaries making it very difficult for Republican apirants and incumbents alike. In fact, any GOP gains in Illinois in 2010 should be wiped out in 2012. Likewise, the Republican-controlled legislature in Pennsylvania released a map that will (1) shore up GOP districts and (2) make it easier to take on two incumbent Democrats. Yet, no Federal court is redrawing maps in Illinois or Pennsylvania that may have taken into account race and ethnicity.
Most importantly, from the Texas standpoint, is whether their legislatively-drawn districts were done with a racial or ethnic animus. Previous Court decisions have either failed to reach these issues (and focused on the mechanics) or upheld intrusions on state sovereignty when there was a finding of racial or ethnic animus. Put another way, although the Court may generally disapprove of judicial activism, they are more loathe of overturning precedent despite the purported merits of the arguments from Texas.
In the final analysis, this is a case of judicial activism gone wild. For the District Court in San Antonio to totally discard a legislative map drawn up and approved by its legislature and replace it with their own is beyond the bounds of reasonableness. From a strategic standpoint- and hopefully Texas will not stress this point- an all out attack, despite the merits, on Section 5 is a non-starter and hopefully will not frame the debate on January 9th. Most likely, the liberal wing of the Court will attempt to entrap Texas into that argument. But, this is a case of judicial activism and over-reach. They are totally nullifying the work of elected officials absent any finding of racial animus on the part of Texas and are working on a set of hypothetical assumptions. The fact Scalia referred the matter to the entire Court only underscores its importance. One can expect a two-part decision- one with broader consensus on the practical implications and one closer in the vote on the broader issues. Still, I expect a 5-4 decision assailing the District Court in San Antonio for jumping the gun absent a finding or decision from the DC Court (or Justice Department) and attacking judicial activism in this area. Section 5 will be upheld in principle- just not in this particular case. And a compromise map will result where both parties can expect to gain two seats in the House. Of course, most of this would be moot if the GOP would recruit, cultivate and support qualified and competent Hispanic candidates. That would be the largest stake in the heart of Section 5.