Wednesday, July 28, 2010

Saving Us from Ourselves

So often we see important political issues turned into legal issues, which sometimes relieves legislatures of the consequences of ill-considered actions.  Such seems to be the fate of Arizona's well-publicized immigration enforcement law, SB 1070, large portions of which were enjoined today by a federal judge.  This kind of resolution may be frustrating to both proponents and opponents of the law, but perhaps is the best way to defuse the controversy.  Proponents of the Arizona statute are sure to get outraged at the audacity of "liberal" judges to overturn the legislature's expression of the popular will, but are unlikely to work through the nuances of the court's application of the preemption doctrine.  An analysis of the court's decision shows that what the judge did was actually rather routine and straightforward.  Holding that this statute is likely to violate the preemption doctrine involves none of the creativity that the U.S. Supreme Court employed this year in for example, holding that corporations have a constitutional right to spend unlimited amounts of money on political advertising, or holding that the Second Amendment is incorporated to apply to the states by the due process clause or the privileges and immunities clause.  (Both those times by the way the Federal Courts overturned carefully-considered statutes duly enacted by either Congress or local ordinance, but we didn't hear much protest by those on the right who rail against the power of judges to overturn the popular will.)  In this case, by contrast, the court merely applied the well-understood concept that immigration is a matter that must be left largely to federal enforcement.

Perhaps those who will express outrage at the court's decision will be secretly relieved that the court has prevented some of the potentially unpleasant consequences of this statute from occurring, both political consequences as well as local law enforcement consequences.   Because you have to wonder how much this controversy was really about resolving a problem like immigration, as opposed to scoring political points about a hot button issue.   Now everyone has had a chance to score their political points and draw attention to a real problem, without actually doing anything about it that they might later regret.

California went through a similar process with the enactment of Proposition 187 in 1994, which also allowed everyone to score political points on both sides of the immigration debate, while being saved by the federal courts from the most serious consequences of their actions.  We know what needs to be done to deal with the immigration problem, and that is to pass comprehensive immigration reform at the federal level.  Maybe we can now turn our attention to doing that.


  1. The reality is the Feds aren't doing their job and the Arizona law was a reaction to that. I'm not surprised it was mostly canceled. You are right it gives people an "out" but the sad thing is nothing meaningful will happen.

  2. Best political message I ever recieved was: the farther from your front door, the less effective the government. Those who put their faith in central government and who blindly trust politicians are naive and ignorant at best. Never trust a politician, even if you like him/her. Watch them carefully and toss 'em out after 2 terms, even if you like them. One term if they are awful.

  3. Thanks for visiting BostonDan. I don't know anyone who blindly trusts politicians. Do you?

  4. << I don't know anyone who blindly trusts politicians. Do you? >>

    Of course -- we all do -- and those people drive most of us CRAZY!!