- The Washington Times - Tuesday, July 20, 2010

The Obama administration’s lawsuit challenging the constitutionality of Arizona’s controversial S.B. 1070 (its state Senate bill number) will be heard Thursday in federal court in Phoenix. The Justice Department asserts that this state statute, touching on immigration, is pre-empted and its enforcement should be enjoined, partially because it “will inflict irreparable injury on the United States’ ability to manage foreign policy.”

The issue of pre-emption is complicated, and we will not try to resolve it. What intrigues us, however, is that S.B. 1070 is not a state statute purposefully contrary to U.S. foreign policy, such as Massachusetts’ Burma sanctions, struck down by the Supreme Court. Instead, S.B. 1070 attempts to fill a gap left by what Arizonans consider to be lax federal enforcement of a body of federal laws that Arizona has tried to parallel.

In support of the Obama administration position, the Justice Department filed a declaration by Deputy Secretary of State James Steinberg. Mr. Steinberg argues that S.B. 1070 “antagonizes foreign governments … likely making them less willing to … support [the U.S.] across a broad range of foreign policy issues.” This we know because “foreign leaders … have criticized S.B. 1070.” Moreover, this “can directly affect the [U.S.’s] ability to negotiate and implement favourable [sic] trade … agreements and to secure cooperation on counterterrorism[,] drug trafficking [and] nuclear non-proliferation,” and “threatens to undermine our standing in regional and multilateral [human rights] bodies.” Mr. Steinberg concludes, without offering a single real fact as evidence, that S.B. 1070 “risks reciprocal and retaliatory treatment of U.S. citizens abroad.”

So much from only one state statute! But even beyond these sweeping and utterly unsubstantiated claims, it is Mr. Steinberg’s attempt to justify his concerns that offers interesting - but very puzzling - insights into President Obama’s practices and priorities in foreign policy.

Consider Mr. Steinberg’s point that criticism by foreign governments is sufficient to impede the implementation of U.S. domestic policy. What is the State Department for if not to overcome foreign misperceptions and disagreements with the United States and to advocate our policies and interests through to a successful conclusion? Under Mr. Obama, do Mr. Steinberg and his colleagues simply wilt at the first sight of foreign disagreement?

One also might ask which are the foreign governments being antagonized and what are the regional and multilateral bodies where we are losing standing? And can someone explain what Arizona’s S.B. 1070 has to do with nuclear nonproliferation?

Mr. Steinberg cites Venezuela, Nicaragua, Bolivia and Ecuador among the foreign governments troubled by S.B. 1070. We find it hard to understand how Mr. Obama’s apparent preference for lax enforcement of our immigration laws will somehow improve relations with that gang’s present governments. Nor is the embrace of Iranian President Mahmoud Ahmadinejad by Nicaragua’s President Danny Ortega and Venezuela’s President Hugo Chavez likely to be loosened by letting up on illegal immigrants.

Or consider friendlier countries named by Mr. Steinberg as being offended by S.B. 1070, such as Colombia and Honduras. “Unfavourable” trade relations with Colombia, we suspect, have far more to do with the Obama administration’s failure to push for congressional approval of the pending free-trade agreement than with Arizonans’ desire to be protected against illegal immigration. We also suspect that relations with Honduras would have benefited far more by our standing up for its constitutionally elected government against a would-be caudillo than from the weak enforcement of our immigration laws.

Mr. Steinberg refers to the United Nations Human Rights Council (HRC) and the Organization of American States (OAS) as multilateral bodies troubled by S.B. 1070. But on Mr. Obama’s watch, Cuba was welcomed back into the OAS, and Honduras was shunned. The HRC includes several countries, such as Cuba, that never miss a chance to poke America in its human rights eye, notwithstanding their own dreadful records. Our own weak advocacy in the OAS and HRC does more to undermine our standing in these organizations than the imagined horrors of S.B. 1070.

Most troubling is Mr. Steinberg’s guiding premise, namely that criticism by foreign governments is sufficient to affect constitutional adjudication. Surely, this proves too much. When the current litigation reaches the U.S. Supreme Court, as is almost inevitable, is the court’s judgment to be affected by potential foreign criticism?

In fact, instead of carping about S.B. 1070, the State Department should be explaining to foreign governments and opinion leaders that we are proud of what Justice Hugo Black approvingly called “our federalism.” The people’s elected representatives in Arizona have spoken, and their actions will be measured against our treasured Constitution. From a foreign-policy perspective, what’s the problem?

John Bolton was U.S. ambassador to the United Nations under President George W. Bush. Edwin Williamson was the State Department’s legal adviser under President George H.W. Bush.

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