Supreme Court Takes Arizona Immigration Case — Kagan Recuses

The Supreme Court today accepted cert in the challenge to Arizona’s tough anti-immigration law. In a loss to the Administration, Associate Justice Kagan recused herself from the case.

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.

Source: CBS

FLOG THE BLOG: Have you voted yet for the top legal opinion blog? WE NEED YOUR VOTE! You can vote at HERE by clicking on the “opinion” category. Voting ends December 31, 2011.

51 thoughts on “Supreme Court Takes Arizona Immigration Case — Kagan Recuses”

  1. The original law in Arizona WAS incredibly racist. and implied that anyone who even happened to contact, give a car ride, had visit your home any person who was an ‘illegal; could be charged as well. Parents who have children over, teachers, anyone.

    Pearce, the architect of the law, not only had the support of ALEC, the For Profit Prison Industry but the South Western Neo Nazi groups as well. There were other parts of the law just as bad, but that is the one that sticks in my mind.
    The law that was passed by the voters was horrendous.

  2. As far as your put downs of the East coast goes I’ve been to Arizona and in the end it is desert wasteland. peopled by those who’ve been in the sun too long.

    You have seemed to make a feeble attempt to done down you hyperbolic vitriol somewhat, which is a small blessing.

  3. Anon,
    Of course the increased security on the border didn’t reduce the deaths because The Obama administration couldn’t have done anything right. Besides increased security is what the Right has been clamoring for and when they get it, it was the economy and improved conditions in Mexco. If all of that is true, then Arizona has even less reason to try to encroach on Federal authority.

  4. I hate channeling Jack Nicholson, but it was Aaron Sorkin anyway, BUT,

    for years and years over 200 men women and children a year died in our deserts, in our backyards. This was a goddamn humanitarian tragedy, and the calls to close the borders were mostly ignored.

    The deaths themselves are ignored by Rafflaw or used as a punchline to a cry of racism.

    THIS is exploitive of these dead people who only wanted a better life, and did not die just so ignorant, shallow east coast self-claimed progressive dumbass lawyers could sip their g&ts and call Arizonans racists.

    It’s much more complex than that.

  5. Rafflaw,

    “Did I forget to mention that the Obama administration has done more to stem the tide of illegal immigration than the previous administration?”

    2 x 0 = ?
    5 x 0 = ?

    Was Obama “proactive” before 1070 and other efforts (dislike that word) or “reactive” to 1070.

    What has been Napolitano’s actual behavior over the years towards border protection, including the time she was governor to the time she was appointed head of DHS to now?

    What would an economist say was more effective in curbing illegal deaths in our deserts from over 232 in 2007, to 252 in 2010, to about 132 in 2011? Obama and increased border security or the economy? Most people would tell you it’s not increased border security.

    Here’s the times that tells you it’s the economy, better conditions in Mexico, and a crackdown on the economic rewards to illegal immigrants:

    Better Lives for Mexicans Cut Allure of Going North
    Economic, demographic and social changes in Mexico are suppressing illegal immigration as much as the poor economy or legal crackdowns in the United States.

    Published: July 6, 2011

    AGUA NEGRA, Mexico — The extraordinary Mexican migration that delivered millions of illegal immigrants to the United States over the past 30 years has sputtered to a trickle, and research points to a surprising cause: unheralded changes in Mexico that have made staying home more attractive.

    A growing body of evidence suggests that a mix of developments — expanding economic and educational opportunities, rising border crime and shrinking families — are suppressing illegal traffic as much as economic slowdowns or immigrant crackdowns in the United States.

    Here in the red-earth highlands of Jalisco, one of Mexico’s top three states for emigration over the past century, a new dynamic has emerged. For a typical rural family like the Orozcos, heading to El Norte without papers is no longer an inevitable rite of passage. Instead, their homes are filling up with returning relatives; older brothers who once crossed illegally are awaiting visas; and the youngest Orozcos are staying put.

    “I’m not going to go to the States because I’m more concerned with my studies,” said Angel Orozco, 18. Indeed, at the new technological institute where he is earning a degree in industrial engineering, all the students in a recent class said they were better educated than their parents — and that they planned to stay in Mexico rather than go to the United States.

    Douglas S. Massey, co-director of the Mexican Migration Project at Princeton, an extensive, long-term survey in Mexican emigration hubs, said his research showed that interest in heading to the United States for the first time had fallen to its lowest level since at least the 1950s. “No one wants to hear it, but the flow has already stopped,” Mr. Massey said, referring to illegal traffic. “For the first time in 60 years, the net traffic has gone to zero and is probably a little bit negative.”

    The decline in illegal immigration, from a country responsible for roughly 6 of every 10 illegal immigrants in the United States, is stark. The Mexican census recently discovered four million more people in Mexico than had been projected, which officials attributed to a sharp decline in emigration.

    American census figures analyzed by the nonpartisan Pew Hispanic Center also show that the illegal Mexican population in the United States has shrunk and that fewer than 100,000 illegal border-crossers and visa-violators from Mexico settled in the United States in 2010, down from about 525,000 annually from 2000 to 2004. Although some advocates for more limited immigration argue that the Pew studies offer estimates that do not include short-term migrants, most experts agree that far…

  6. Mike, I deal with racist Arizonans, birther Arizonans, Obama is coming for you guns Arizonans every day, but the overwhelming support for 1070 in Arizona is not coming from racist Arizonans but from everyday, non-racist Arizonans who are faced with the problems I pointed out above.

    And who simply disagree with you and rafflaw about how to solve these problems.

    That is all.

    If I tell you there are anti-semites among OWS, is it right to tar all of OWS with anti-semitism?

    While 1070 does poll well amongst racists, I see no evidence that Kris Kobach, the SOB pushing/writing 1070/Alabama law is a racist himself. Yes, very conservative, yes anti-immigration, yes, a fucking douchebag lawyer, but nothing that describes his own racist attitudes.

    Some of us, take charges of racism very seriously, and do not use them as cheap trump cards to be tossed on any individual we deem needs to be silenced.

    I do not see racism in Kobach, or in the majority of 1070 supporters, and I do see it addresses issues that the people have been petitioning government to fix for a very long time.

    Rafflaws simplistic cries of racism do nothing to forward the debate, they just polarize the issue.

    Unless you are telling me Gabrielle Giffords is/was a racist.

  7. Mike,

    “Some screed about the ills of feminists perhaps might jog your memory.”

    Screeding (verb?) about feminism is NOT misogynism. That is something feminists want you to buy into, but just looking at the entirety of women aged 12 – 102 in 2011 can tell us that FEMINISM != WOMEN. Complaining about the ills of feminism does not make one a misogynist.

    Men do it. Women do it. Conservatives do it. Liberals do it. Google Wendy Kaminer, Daphne Patai feminism. You”ll find some very liberal women who can tell you precisely about the ills of modern feminism in ways that actual thinking liberals will agree has nothing to do with progressive liberal values.

    Regardless, there was nothing I said in this thread that was misogynistic at all. And I would tell you there was nothing I’ve said in any thread that has been misogynistic.

    Quite the contrary, I usually have to point out to you that your condescending, patronizing, protective, patriarchal attitudes towards women in the guise of feminism is what is actually misogynistic.

    1. Anon,

      Though it seems to give you comfort to think so, there is little I “buy” into. In my opinion, though you protest, I believe you are a misogynist. It isn’t your critique of feminism that makes me think. so it is your manner of writing about it. Also you pompous ass, saying I believe in a cause doesn’t mean I follow its, or any other party line. I am and always have been an iconoclast whether your stereotyping brain can understand that or not.

      Despite your need to categorize people, via labels and then assuming you know what they think, you really don’t have a clue who I am, although I’ve written copiously here about myself and my experiences. This is your problem, Anon, you project your own failings onto others, imaginning them ideologues, when it is you you that is the rigid thinker.

      As far as to the racism behind the Arizona law goes it was done in service to the politics of racism and it was that base it was meant to appeal to. As you might observe I am for being tough on immigration but not at the expense of allowing police state tactics, you apparently are, in your defense of the law.

  8. Puzzling,
    The Arizona immigration law wasn’t written to augment federal law. It was written to encroach on federal authority. To think otherwise is to ignore the politics in Arizona during its genesis. I brought up the immigration efforts of the Obama administration as additional evidence that Arizona’s cries of immigrants gone wild was overstated.

  9. Rafflaw,

    Did I forget to mention that the Obama administration has done more to stem the tide of illegal immigration than the previous administration?

    No you didn’t forget to make that argument. You did it above when you said “The Feds have deported thousands more than the previous administration and have put more people on the border than ever before.”

    I’m not trying to make a Democrat/Republican argument about the relative efforts of these Presidents. Neither administration has successfully dealt with illegals, leaving social and economic problems in many areas that states have to deal with as Anon outlined.

    When the state law encroaches upon Federal authority it has to be written for political purposes.

    Arizona’s law is identical to existing federal laws on immigration and complements enforcement, just as Arizona’s laws and resources on kidnapping complement federal laws. Just because kidnapping laws exist at the federal level doesn’t mean that the state can’t use law enforcement resources to enforce them, or to pass complementary laws on kidnapping within the state.

    If your statement is true, was Arizona’s minimum wage law written for “political purposes” to be higher than the federal standard? Is Oregon’s medical marijuana law written for political purposes? Are California’s higher emission standards for cars somehow political because they override the EPA?

    For what other purposes are laws written? They are all done within a political process. I’m really not sure of your point, unless it is again to raise the specter that these laws are driven by inherent racism within the electorate that is enabled by Arizona politicians.

  10. Wow, anon and puzzling,
    Did I forget to mention that the Obama administration has done more to stem the tide of illegal immigration than the previous administration?
    When the state law encroaches upon Federal authority it has to be written for political purposes.

  11. Anon
    Some screed about the ills of feminists perhaps might jog your memory.

    “All this talk about racism is just pure shallow ignorant jackassed trite robotic from a jackass that has not looked into the issues.”

    As for my first point above is exhibit A.The merits and/or need for the Arizona Law should be separated from the intent in its passage. That intent was most probably anti-Mexican, which has a history of selling well among certain groups in Arizona. Perhaps as a non-resident of that lousy state, been there hated it, I am wrong, yet the continued election of Joe Arpaio, certainly is not just about law and order.

  12. Let me clarify,

    How dare Rafflaw call supporters of 1070 racist and then declare that anyone that shoots them down as jackasses or with bombast has somehow crossed a line?


    But declaring others as racist because they disagree with a law the majority has voted into place is NOT an argument.

    And that behavior deserves ridicule, scorn, and bombast.

    That’s not arguing in the fine Pythonic sense, but merely speech policing and gatekeeping.

  13. Misogyny? Where is the misogyny!?

    How dare Rafflaw call other people racist merely because they support or do not support 1070?

    GABRIELLE GIFFORDS defends 1070. A large portion of liberals (of not a majority) in Arizona support 1070.

    All this talk about racism is just pure shallow ignorant jackassed trite robotic from a jackass that has not looked into the issues. And as I point out, a particular kind of jackass that relies on a state monopoly to keep his damn job safe.

    If you want to argue 1070 pro or con, THAT IS FINE.

    What is offensive is just to call all supporters of it racist. Or declare it racist. Or say it shows the racist tendencies of Arizona.

    I can’t stand this fucking state, but support for 1070 is far more complex than simpletons calling it racist to score political points.

    But I miss where I was misogynistic. What a bitch.

  14. “Rafflaw,
    You might feel differently if you were actually a thinking, living liberal interested in universal health care”

    “But since you’re a fat cat lawyer with a state enforced monopoly on who can practice law it’s easy for you to sit back and call other people having to deal with these real world problems racist.
    Mainly it makes you a naive, judgmental, ignorant jackass.
    And not nearly as liberal as you would like to believe.”

    Can you please stop taking your own misogynistic failings out on others and rely upon logic rather than invective? After the opening line and until the closing line of your 2:02 pm post I agreed with your argument. However, there is something in you that can’t stop with just making a point, but yearns to bombastically cast aspersions on all you agree with. Now you may well answer that I regularly cast aspersions on those I disagree with and you would be correct. However, the overwhelming majority of those I “asperse” are public institutions and figures. Rarely when commenting on the blog do I personally attack another commenter, unless they have first attacked me. That’s not because I’m a nice guy so much as that I come here looking for discussion, not getting my “rocks off” on others.

    Who in hell are you to call someone who doesn’t hide behind anonymity anything? What is it you do? Perhaps you too are a fat cat, or a scion of inherited wealth? We can’t tell because you’re Anon and so can mis-characterize others with impunity. Perhaps Xanax would help you with your anger issues.

    As to the point at hand I personally am against an open immigration policy,
    illegal immigration and particularly work visa’s. This is a hard place for me to come to since my grandparents were all immigrants, who were European peasants. However, it is interesting that immigration in the US took off after the emancipation of blacks and its highs and lows afterwards correlate with any gains made by the black community.

    It was correctly stated that the 1% has always supported open immigration, illegal aliens and proliferating work visas. Cheap labor is the reason. That same 1% claims Americans won’t take certain jobs, so immigrants fill the void. They are correct in the sense that American people won’t work for starvation wages ad horrible working conditions. The truth is that paying a fair wage and providing decent working conditions, would eat into their profits.

    When we get to the law though in Arizona and Alabama the real result of it is to ensure the continual harassment of people of color and ethnic minorities. It brings the day-to-day workings of a police state closer and probably is ineffective to boot.

    Already, Republicans in Alabama are looking to revise their law:

    Now the truth is that besides a few ridiculously maladroit police actions, the law has also made it hard to harvest crops. Immigration is and should remain under Federal purview.

  15. “If you write a state law that mirrors the federal one, why do you even need the state law?”

    Are you saying there are no other state laws that mirror federal laws?

  16. I think the Administration has made a political calculation that having this immigration decision before the election will be a good thing for them. The people who are strongly in support of state immigration laws probably won’t vote for President Obama anyway but the people who are opposed to them may need some additional motivation to get to the polls and vote Democratic.

    I don’t understand the pre-emption argument. If the Arizona law mirrors Federal law what is the issue?

Comments are closed.