I have previously written and discussed that I viewed this case as a close one with some solid arguments being made on both sides. While the existing precedent supports the Administration, there is ample authority that would support the Court in reversing the lower court and ruling for Arizona on the issue of preemption. The most interesting constitutional question in the case is the implied preemption claim made by the Administration — arguing that, even if the state passes a law that enforces federal rules, it runs counter to federal authority.
With a hearing around April, the Court could rule by July — well in advance of the presidential election. I have expressed confusion of the strategy of the Administration in pushing this issue. I am not sure which is worse for Obama: to lose this case or to win this case. Polls show Americans heavily opposed to illegal immigration and generally supportive of these state efforts.
Along the vein, the Administration picked the world’s worse time to propose an unmanned entry point around the Mexican border. Under the proposal, people could cross by swiping a card and they could communicate with agents 100 miles away. The idea is not as ridiculous as it has been portrayed, but who on Earth would pick this time to make such a proposal? Much like the Christmas tree tax, there does not appear to be anyone working at the switch to time these proposals.
The Kagan recusal is likely to add to the demands that she agree to recuse herself from the health care case, as she had other issues that went through her office as Solicitor General. Kagan previously recused herself from the last immigration decision involving Arizona.
The Administration could have delayed these cases and worked to scuttle review. Instead, it has been doubling down on immigration and filing challenges to state laws when it could have allowed others to advance these claims (while reserving the right to intervene as an amicus as has been the practice in the past). It has now largely engineered both a health care ruling and immigration ruling to come down before the election. I fail to see the wisdom in that strategy but the White House appears to believe that this is a winning strategy to have a ruling on the two most divisive issues in the country.
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