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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