- The Washington Times - Sunday, April 22, 2012

The Supreme Court’s health care showdown last month was all about Constitution theory and prerogatives. Wednesday’s arguments between Arizona and the Obama administration over the state’s tough immigration law looks to be all about power.

Arizona argues that the federal government has failed to enforce its laws on the books and says states should be free to enforce their own laws as long as they complement the national goals. Obama attorneys say the Constitution gives power over immigration to the federal government, and there can be no infringement.

The electorate is clearly on the side of Arizona: A Quinnipiac University Poll last week found that 62 percent of voters said they want the court to uphold the law.

But what the justices do is another matter altogether.

The law at stake, known as S.B. 1070, would grant state and local police the power to check the immigration status of those with whom they come into contact who they suspect are in the country illegally. It also requires legal immigrants to carry their papers — a mandate of federal law.

First a district court and then the 9th U.S. Circuit Court of Appeals blocked those parts of the law, sending S.B. 1070 on to the Supreme Court.

In the meantime, other states — including South Carolina, Alabama, Georgia and Utah — have followed Arizona’s lead in granting police enforcement powers.

Michael Wildes, an immigration lawyer in New Jersey, said filling in where the federal government is failing is not a constitutional reason to tread on federal prerogatives.

“The problem is that you can’t have a patchwork — we can’t have a quilt made of different patches in different states,” he said. “We need a seamless federal immigration law that will treat everybody equally.”

Mr. Wildes said the polling that showed most Americans favor Arizona’s law is a testament to frustration with the federal government on immigration. He said voters, egged on by “the xenophobia the media has created,” are beginning to take an us-versus-them approach to immigration that he said would shock the country’s founders.

Kris Kobach, who helped write S.B. 1070, said the law was designed to help the federal government, not to compete with it. He said there is no federal law that conflicts with Arizona’s, but rather a federal policy by the Obama administration, which enforces the law selectively.

Mr. Kobach, who was elected secretary of state in Kansas in 2010, said that would set a troublesome precedent.

“If the 9th Circuit decision is affirmed and Arizona loses, then we would be in a situation where the president or any minor official in the executive branch could simply invalidate dozens of state laws by issuing a formal statement or order,” he said. “They literally are saying that unelected officials can pre-empt state laws merely by saying the state law doesn’t meet their preferences.”

While President Obama and his advisers criticized the law in 2010 for leading to potential racial profiling, the lawsuit they filed asking the court to block it relies not on discrimination claims but on issues of government power and decision-making.

In one claim, the administration says the law interferes with the federal government’s ability to control foreign relations. Underscoring that claim, the government’s legal brief filed with the Supreme Court is signed by the State Department’s legal adviser, Harold Koh.

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