Monday, July 12, 2010

Watchful waiting in the Arizona Territory

The Justice Department, under the leadership of Attorney General Eric Holder, has been consistent in its dealings with the leaders of the Arizona Territory, in the wake of its overbroad anti-immigration law. DoJ filed a lawsuit against Arizona last week, a fairly-focused action intended to oppose what the federal government sees as an attempt to superseded the fed’s authority to determine national immigration policies.

But Holder’s now on the record about the government’s intent to watch the law’s implementation (now set for July 29), looking for anything that suggests racial profiling against the state’s Latino residents. In comments made over the weekend, Holder pushed back against those who’d support usurpation of federal authority over such national decisions, and against those who see his department’s actions as purely political outreach. There’s a clear drawing of the battle lines over a dispute that may end up this fall, or eventually, before the U.S. Supreme Court.

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On CBS’ Sunday gasbag program “Face the Nation,” Holder almost sidestepped the question of racial profiling, articulating the main reason for the federal lawsuit was because the law’s intent to pre-empt federal authority over immigration policy was “inconsistent with the Constitution.”

“It is the responsibility of the federal government, as opposed to states doing it on a patchwork basis,” he said in a clear renunciation of the very heart of the “states’ rights” philosophy.

Holder implied that the law’s July 29 start date may come to pass, despite a variety of legal challenges, vigorous netroots opposition and the scorn of Latino and minority rights organizations in the territory and nationwide. But that wouldn’t prevent another federal suit if need be. “It doesn’t mean that if the law, for whatever reason, happened to go into effect that six months from now, a year from now, we might not look at the impact the law has had” and decide that racial profiling had taken place, he said.

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When territorial Gov. Jan Brewer signed the measure into law, back in April, the law attracted international attention, and a flurry of cancellations of various sporting and conference events, costing Arizona millions. Since then the issue’s been on the media’s side-backburner. But the Arizona law might flare back into full attention again soon.

The immigration issue itself plays to the more vocal, extremist elements of party politics in 2010. The Tea Party movement has rallied emotionally behind its nativist dimensions. J.D. Hayworth, challenging Sen. John McCain in the August primary, has become a Tea Party darling for his uncompromising anti-immigration stance. And for conservatives generally, immigration may be the last, unassailable hot-button cultural issue left with which to bludgeon the Democrats.

With other parts of the country watching to see how the law plays out in Arizona (some of them states where immigration is a growing concern), and with a huge bloc of engaged Latino voters in the balance, the likelihood of the Arizona law exploding fresh out of the background of the national attention span grows and grows.

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The reason for that is because immigration in general and the Arizona law’s response to the issue in particular will both be on the table if — or when — a Justice Department challenge to the Arizona measure comes before the Supreme Court. While the law’s scheduled to kick in on July 29, that’s probably a soft date; lower-court challenges could hold that up for weeks. Maybe for just enough to gain a space on the Supremes’ docket — ready for arguments in the second or third week of October.

When that happens, the issue of immigration policy and who decides it takes center stage. The Supremes certainly won’t announce, or even make, a decision before the November election. But the partisanship the issue’s aroused with the general public will certainly be reflected (rationally, we hope) in the chambers of the high court, whose probable newest member, Elena Kagan, will face the first test of her storied judicial pragmatism.

Holder’s already set the terms of engagement in this war over authority; the lawsuit, with all the weight of the federal government behind it, is always an option, a weapon, to be considered. Like the Latino residents who are by coincidence or design the object of the law’s scrutiny, the Arizona territory’s being watched by the government. The Supreme Court may decide who’s wearing the blinders.

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