Nothing Succeeds So Much As Failure: Obama Could Use A Loss In The Immigration Case

Below is today’s column in the USA Today on the arguments this week in the immigration case, Arizona v. United States. (Docket No., 11-182). At issue is Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) directing state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law. Beyond the difficult constitutional and statutory questions in the case, there is another element to the case that could come within months of the 12th anniversary of Bush v. Gore


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This week, the Supreme Court will take up one of the most divisive issues facing the country: illegal immigration. At issue is Arizona’s controversial new law calling on state police to enforce federal immigration law by confirming the legal status of suspects and detaining them if found to be in the country illegally.

The case represents the convergence of law and politics, and will have obvious repercussions for the presidential election. Indeed, 12 years after the controversial decision in Bush v. Gore, the ruling could decide the 2012 election if conventional wisdom is accurate. However, this time Democrats might be counting on conservative members of the Supreme Court to secure a win in November.

For Barack Obama, it is a supreme irony: What he needs most on this immigration ruling is a loss. The case involves a difficult question of federal vs. state authority. The Obama administration is arguing that the state law is “pre-empted” by federal law, which leaves no room for individual state enforcement of immigration laws. However, Arizona has pointed out that Congress has acknowledged the right of states to have concurrent immigration laws and questions how a state law enforcing federal law could be in conflict with it.

Beneath this constitutional question, however, lies an explosive social and political controversy. Polls show that Americans overwhelmingly support tougher immigration enforcement. As with the health care law (which, according to polls, is opposed by half of Americans), opposing state enforcement would not appear to be a strong position for the Obama administration as it goes into a tight presidential race with Mitt Romney. Yet, as with health care, the administration pushed the immigration question — directly challenging this and other state laws in federal courts. Supreme Court rulings on both issues will be delivered by the end of this year’s term in late June — just ahead of the political convention season.

Non-enforcement approach
The administration’s pitch in court is clearly not tailored for the general public. Though not widely reported, the administration has admitted that its policy on immigration is not to enforce the laws in many cases. Noting that the Arizona law is based on a policy of “maximal ‘attrition through enforcement,’ ” the Obama administration insists its policy is to focus on deporting “dangerous” illegal immigrants as opposed to people who simply entered the country illegally. The problem with this argument is that the federal law does not distinguish between groups of illegal immigrants for purposes of deportation.

More important, many Americans assume that the government is committed to maximum enforcement based solely on illegal status. The Obama administration insists that this is naive and that other considerations must be given preference over enforcement, such as foreign relations and humanitarian concerns.

While Obama appears to honestly believe that maximum enforcement is not the right policy, the case could create a perfect wedge issue in the political campaign. Even more ironic is the fact that it could be the court’s conservatives who secure the victory for Obama.

How a loss would help Obama
Here is how it might play out. Many pundits have emphasized how critical the Latino vote will be to the election. In 2008, Obama won with the help of 67% of Latinos, and his nomination to the Supreme Court of the relatively unknown Sonya Sotomayor was viewed as reflecting the importance of his appeal to both women and Latinos.

The White House has been moving aggressively to secure the advantage. According to a new Wall Street Journal-NBC News poll, Obama leads Romney among Latinos by 69% to 22%. This is particularly important in Florida, which has a large Latino vote and could be the critical state in a close election. The gravitational pull of Florida is immense. Many political experts identify Florida (again) as the state that would likely dictate the outcome, given its high number of electoral votes. Latinos also play a big role in other large states, from Texas to California to Arizona. Obama knows that Romney will probably need to get about 40% of Latino voters to win in 2012.

This brings us back to immigration. The court could give Obama a galvanizing issue shortly before the election. Polls of Latinos show that 85% favor illegal immigrants being allowed to gain legal status and that a majority oppose current enforcement as too strict. Almost half find the very term “illegal immigrant” offensive. So, ironically, Obama’s support among Latinos is likely to be greater if the president loses before the court.

As an institution, the Supreme Court is not unaccustomed to the convergence of law and politics in a case, but it rarely welcomes it. To make matters worse, the immigration case could well be decided by the court’s single swing vote, Justice Anthony Kennedy. Even with his purported Etch-a-Sketch approach to the general election, Romney would find it difficult to flip on the issue and criticize the conservative wing of the court.

As a result, the conservatives on the court could again decide the presidential election, but this time it would be a Democrat who benefits from their ruling. When it comes to immigration politics, nothing succeeds so much as failure.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is on USA TODAY’s Board of Contributors.

April 23, 2012

15 thoughts on “Nothing Succeeds So Much As Failure: Obama Could Use A Loss In The Immigration Case

  1. We’ll see. Personally, I’m all in favor of Republicans doing everything they can to alienate Latinos. We’ll see how many elections they can win while losing Florida and the whole Southwest.

  2. Talking Dog,
    Interesting idea. But would a delayed decision remove the Damoclean sword hanging over Latino voters? It might even emphasize how important a vote for Obama would be.
    Or have I missed your point?

    These wily people—on both sides. Why can’t they cooperate? They do so in secret? What’s that called?
    “Fooling the people”?, Cool name! Can I vote for it? I already do now? Huh!? No sabe nada.

  3. What we have, in large part, is “a culture of impunity.”

    “A new PBS documentary exposes the tasing and beating death of a Mexican immigrant by U.S. border agents in California, and has renewed scrutiny of what critics call a culture of impunity.”

    http://www.democracynow.org/2012/4/24/death_on_the_border_shocking_video

    Tuesday, April 24, 2012

    Death on the Border: Shocking Video Shows Mexican Immigrant Beaten and Tased by Border Patrol Agents

    “A new PBS documentary exposes the tasing and beating death of a Mexican immigrant by U.S. border agents in California, and has renewed scrutiny of what critics call a culture of impunity. In May 2010, 32-year-old Anastasio Hernández Rojas was caught trying to enter the United States from Mexico near San Diego. He had previously lived in the United States for 25 years and was the father of five U.S.-born children. But instead of deportation, Hernández Rojas’ detention ended in his death. A number of border officers were seen beating him, before one tasered him at least five times. He died shortly afterward. The agents say they confronted Hernández Rojas because he became hostile and resisted arrest. But previously undisclosed videos recorded by eyewitnesses on their cell phones show a different story. “All eyewitnesses that we spoke to basically tell the same story of a man hogtied and handcuffed behind his back, not resisting, being beaten repeatedly — by batons, by kicks, by punches, by the use of a taser — for almost 30 minutes until he died,” says reporter John Carlos Frey, whose exposé aired in a national television special last Friday night, as part of a joint investigation by the PBS broadcast, “Need to Know,” and the Investigative Fund of the Nation Institute.”

  4. What do the states rights proponents think of differentiated immigration laws in each state? I know the republicans in Texas are waiting for this ruling to press ahead with new laws.

  5. An adverse ruling for Obama could potentially help him politically but with so many restrictive voter id laws having been passed who knows?

  6. CHESTER TOWNSHIP, Pa. — Marco Rubio took the stage with Mitt Romney and delivered what the presidential candidate wanted — a jolt of energy aimed at an uninspired Republican base and a message of inclusion to Latino voters, who have drifted away from the party in droves.

    Monday’s appearance by Rubio, a Florida senator and possible vice presidential pick who has become one of his party’s most prominent Latino leaders, drew cheers and applause from the crowd. But it was also a reminder of competing imperatives facing Romney after a combative primary season in which he moved far to the right on illegal immigration, a key concern for many Latino voters.

    For months, Romney repeatedly sought to outflank his opponents on the issue: chiding Texas Gov. Rick Perry for favoring in-state tuition breaks for the children of illegal immigrants, vowing to veto the Dream Act that would have allowed citizenship for certain students who joined the military or attended college, and suggesting that Arizona’s controversial approach to rooting out illegal immigrants could be “a model” for the nation. Los Angeles Times

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