Supreme Court Takes Up Arizona Immigration Law
The Supreme Court has agreed to review Arizona v. United States, the case regarding SB 1070, the Arizona law (only) four sections of which have been enjoined by the lower courts: requiring police to check the immigration status of anyone they have lawfully detained whom they have reasonable suspicion to believe may be in the country illegally; making it a state crime to violate federal alien registration laws; making it a state crime for illegal aliens to apply for work, solicit work in a public place, or work as an independent contractor; and permitting warrantless arrests where the police have probable cause to believe that a suspect has committed a crime that makes him subject to deportation. For my previous analysis of SB 1070 and the legal challenges to it, see here, here, here, and here.
By taking up this case, the Supreme Court is wisely nipping in the bud the proliferation of state laws aimed at addressing our broken immigration system. One way or another, states will know how far they can go in addressing issues relating to illegal immigrants, whether the concern is crime, employment opportunities (providing or restricting them), registration requirements, or even so-called sanctuary cities.
Of course, states wouldn’t be getting into this mess if the federal government — elected officials of both parties — hadn’t abdicated its responsibility to fix a system that serves nobody’s interests: not big business or small business, not the rich or the poor, not the most or least educated, not the economy or national security, and certainly not the average taxpayer. For their part, SB 1070 and related laws in Alabama, Georgia, and elsewhere are (with small exception) constitutional — the state laws are merely mirroring federal law, not conflicting with it or otherwise intruding on federal authority over immigration — but bad public policy. (For more on both these conclusions, read my SCOTUSblog essay from last summer.)
What this country needs is a comprehensive reform that obviates the sort of ineffectual half-measures the states are left with given Congress’s shameless refusal to act. It’s not very often that Cato calls for the federal government to do something, but the immigration system is quite possibly the most screwed-up part of the federal government — which of itself is a significant statement coming from someone at Cato — and one that is so incredibly counterproductive to American liberty and prosperity.
The Court will hear Arizona v. United States in the spring. For more immigration-reform developments, see this note in today’s Wall Street Journal and my blogpost on Utah’s plan, which the federal government has also since sued to enjoin.
What Immigration Reform Would Look Like
Utah’s done it (great editorial in the WSJ):
Passed by the state’s GOP legislature and signed by Republican Governor Gary Herbert in March, Utah’s plan is notable because it’s the first in the country that would allow undocumented immigrants to get a permit and work legally, after paying a fine of up to $2500 and meeting other conditions. The program is part of a larger package that includes increased scrutiny of immigrants who break the law. The compromise allows the state to address the economy’s demand for workers—thus reducing the incentive for illegal immigration—while satisfying voters who don’t want to reward those who arrived illegally.
Of course, states can’t just announce their own guest-worker programs — the federal government has plenary power over immigration — so Utah may need a waiver from the feds. Which might not be forthcoming, given politically tone-deaf and legally dangerous statements like this:
In a Senate Judiciary hearing on Wednesday, Attorney General Eric Holder said the law, which combines enforcement measures with a guest worker program, needs to be adjusted or face federal lawsuits. Pressed on whether the Administration planned to sue Utah, Mr. Holder said the Department of Justice “will look at the law, and if it is not changed to our satisfaction by 2013, we will take the necessary steps.”
“To our satisfaction?” What does Holder think an eventual federal immigration solution would look like? Here’s Cato’s proposal, but anything that gets through Congress will have to expand employment opportunities for both skilled and unskilled immigrants, normalize the status of current illegals, and otherwise refocus resources on criminals and terrorists.
But it’s not just the government that’s up in arms about Utah’s sensible legislation:
Like Arizona, Utah is already fending off lawsuits from the left. On Tuesday, the American Civil Liberties Union and the National Immigration Law Center sued to stop the portion of the law similar to the one in Arizona that enlists state and local police in the effort to identify illegal immigrants. In Utah’s version, anyone who is arrested for a felony or serious misdemeanor has to show proof of citizenship.
Good grief! State officials do not violate the Supremacy Clause — or engage in unconstitutional racial profiling — when they enforce federal law, which is what Utah’s enforcement measures, like most of Arizona’s, do. Critics naturally maintain that such enforcement decisions should be left to the feds but that only gets it half right: the federal government, particularly its executive branch, has discretion over how to prioritize enforcement priorities, but those discretionary decisions (which, after all, can change from one administration to another and even within one presidency) cannot preempt state law. Only federal law can do that.
This not a question of policy; while I generally like Utah’s plan, I’ve written before that Arizona’s (very different) SB 1070 is constitutional but mostly bad policy. The larger issue is states wanting to do something in the face of federal abdication. Some of Utah’s laws — the “plan” is actually five separate laws, covering the spectrum of immigration issues from expanding legal immigration (HB469, HB466) to addressing those already here for economic reasons (HB116) to addressing serious criminals (HB116, HB497) — may well end up losing in court, but they at least get national attention and to try to push federal action (SJR12).
As Rep. John Dougall, Vice Chair for Appropriations (#2 on the state budget), has explained to me, a major goal Utah had was to shift the dialogue from “enforcement only” to something more comprehensive, especially expanding legal immigration. A more controversial purpose was to plant the federalism flag, arguing that states share some of the jurisdiction over immigration. For example, Dougall wrote in an email to me that I quote with his permission, “HB469 rests on the belief that citizens should have the right to freely associate with anyone in the world, who don’t pose a public safety threat to others, and those citizens should be able to sponsor those immigrants in UT. A belief that the state should defend a citizen’s right to freely associate from an overly expansive federal government.”
I’m not fully convinced that some of this isn’t preempted — by federal law, not by what attorneys general or secretaries of homeland security say or do – but the goal is laudable and the classical liberal first principles are unassailable. The Utah model could work for other states looking to split the Gordian knot between the extremists on both sides whose “debate” generates into ”amnesty” versus “racism.” Texas Republicans have introduced similar legislation and other states’ lawmakers are also apparently interested.
That’s all to the good: even if you can’t enjoy the “greatest snow on earth” during the summer, anyone interested in innovative immigration reform should book a flight to Salt Lake City.
Michelle Rhee and Eva Moskowitz on School Choice
Rhee, the former chancellor of DC Public Schools, and Moskowitz, head of a NYC charter school, were asked at an event last week what they thought of the Supreme Court decision upholding Arizona’s K-12 scholarship donation tax credit program. The program offers a dollar-for-dollar tax cut to anyone who donates to a non-profit Scholarship Tuition Organization (and the STOs then help families pay for private school tuition).
Children’s Scholarship Fund president Darla Romfo asked the question, and here’s the answer she received.
Credits for Crucifixes. Or: What’s the Matter with Kagan?
Justice Kagan’s dissent yesterday in the Supreme Court ruling upholding Arizona’s education tax credits seems to me so obviously mistaken on both the facts and the law that I feel I must be missing something. I offer my initial analysis briefly below, and if anyone can tell me if/where I’m going wrong, my e-mail address is just a Google away.
First, Kagan and her fellow dissenters express dismay at the putative novelty of the majority’s distinction between tax credits and government spending. But, more than a decade ago, this very same distinction was acknowledged by the Arizona Supreme Court in Kotternman v. Killian, and that AZ Court ruling itself cites a string of precedents from around the country supporting it. Clearly, the majority’s ruling is far from novel, and Kagan and the dissenters should know that.
Next, Kagan claims that the majority’s ruling would preclude taxpayers from suing the government for operating a program that gives tax credits exclusively to one religious group. She claims that taxpayers of other faiths would lack standing. That seems quite wrong. The pivotal issue is that taxpayers would have to show a specific personal harm resulting from the government’s actions in order to have standing. In the case of Arizona’s tax credits, as the majority acknowledged, there is no harm to taxpayers. Everyone is eligible for the credit and credits can be claimed against donations to any type of scholarship organization, of any faith or no faith. By contrast, under Kagan’s straw man example of a credit for the purchase of crucifixes, non-christian taxpayers would suffer a specific personal harm: they would be denied the right to use the credit to purchase religious symbols of their own faith (or to buy “Who is John Galt?” posters if they happened not to be religious). This harm would be the direct result of government action–specifically, of the government’s decision to favor Christians over members of other faith groups and secular taxpayers.
A program that discriminates based on religion causes harm to taxpayers by virtue of excluding them from participation. That, in turn, is a clear equal protection violation, not to mention a violation of at least two of the three prongs of the First Amendment Lemon Test, and so such taxpayers would not only have standing to sue they would win the suit.
Again, the AZ tax credit program causes no such harm, because anyone, regardless of faith, can participate, and no one is compelled to support any kind of religious education. Why could Kagan and her co-dissenters not see this?
If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech
Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.
Here’s the background: In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns. Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”
Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional. For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.
The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.
The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):
Alito: Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?
US: Sort of.
Alito: Have you read FEC v. Davis?
Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.
My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech. Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.
NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however — ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment. (That said, you should still follow me on Twitter — and also be sure to follow our friends @IJ and @GoldwaterInst!)
Behind the Political Rhetoric Are Profound Differences
Today POLITICO Arena asks:
Post-Tucson will campaign trail rhetoric change in any discernible way? Should it change? What phrases or words should be considered out of bounds? Or is that approach a way of silencing legitimate criticism of political candidates?
My response:
Post-Tucson campaign trail rhetoric won’t change because, as Charles Krauthammer put it brilliantly in yesterday’s Washington Post, fighting and warfare are routine political metaphors for obvious reasons: “Historically speaking, all democratic politics is a sublimation of the ancient route to power — military conquest. That’s why the language persists,” why we speak of “battleground states” or “targeting” opponents.
That doesn’t mean that no charge is “out of bounds.” It’s perfectly all right for Sarah Palin to “target” 20 potential swing districts — Democrats do the same. And her use yesterday of “blood libel,” as Alan Dershowitz explains, is entirely acceptable too. What is out of bounds is the kind of scurrilous charges we’ve seen from The New York Times, the Paul Krugmans, E.J. Dionnes, Jonathan Alters, and their ilk, that the Tea Party and the political discourse around it contributed to the Arizona shooting — when there isn’t a shred of evidence to support that, and every indication that a lone mentally disturbed individual was responsible.
But far deeper issues are at play here, and they’re brought out in a penetrating piece by Daniel Henninger in this morning’s Wall Street Journal, “Why the Left Lost It.” He points first to the devastating, potentially sea-changing midterm elections — “Republicans now control more state legislative seats than any time since 1928” – which “came atop the birth of a genuine reform movement, the tea parties.” And the debt crises, state and federal, that animate the Tea Party pose a mortal threat to a liberal agenda that stretches back at least to Goldwater.
As Henninger writes, the divide between today’s left and its conservative opponents “is deep, and it will never be bridged. It is cultural, and it explains more than anything the ‘intensity’ that exists now between these two competing camps.” Read it.
Government and Violence
[I]t’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence… is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)
I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.
That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.
The worst outcome would be for all dissent to become suspect. “Anti-government” is a concept used, essentially, to stifle debate, by conflating reasonable criticisms with the actions of lunatics. Both — of course! — are “anti-government,” and both are therefore guilty. It should be obvious what sort of agenda this furthers: Everything “government” is good.
Rep. Jeff Flake to Appropriations
In-coming House Speaker John Boehner’s endorsement of Rep. Jeff Flake (R-AZ) for a seat on the chamber’s appropriations committee means that it’s probably a done deal. Flake is one of the few policymakers who actually lives up to the fiscal conservative label. Thus, Flake’s appointment to a committee that many members think only exists to increase spending on special interests would be welcome news.
Boehner also endorsed a suggestion from Rep. Jeff Kingston (R-GA), who has mounted a dark-horse campaign to chair the appropriations committee, to create a subcommittee focused on investigating federal programs. Flake would chair this subcommittee, and according to a release on his website, he has already lined up worthy targets like Head Start and farm subsidies.
How much success will Flake have within the committee?
The New York Times quotes Flake as boldly saying, “It has been a favor factory for years, and now it is going to become a slaughterhouse.” At the same time, Flake acknowledged to Politico that putting a few anti-spenders on appropriations isn’t going to be enough:
Flake said the conservatives that Boehner wants to get on the committee will be “marginalized” if they’re scattered throughout the panel.
“It’s not enough just to have a few going on the committee,” he said. “They could be dispersed among the subcommittees that are forgotten.”
I recently warned the House Republican leadership against serving tea party voters re-heated meatloaf by allowing old-school spenders to dominate the committees. Getting Jeff Flake on appropriations is a step in the right direction, but his appointment can’t be a token gesture. Anti-spenders like Flake will need support from their leadership to succeed because they sure won’t be making friends with the big-spending old bulls.
How Do I Overturn Thee? Let Me Count the Ways
Tomorrow morning, the United States Supreme Court will hear one of the most important education cases in a generation: the appeal of a 9th Circuit ruling that would cripple or end Arizona’s k-12 scholarship tax credit program.
As you’d expect, commentators aren’t sure how the Supreme Court will ultimately rule: it may decide to overturn the 9th Circuit on the merits of the case, or it could overturn the 9th Circuit on the grounds that the plaintiffs never had standing to sue in the first place. Heck, there might even be people who think SCOTUS will uphold the lower court’s ruling… can’t actually find anyone who thinks that, but they could be out there… somewhere.
On the merits, the law and evidence are clear. Arizona’s program allows private individuals to donate to non-profit k-12 scholarship organizations and get a tax credit when they do–much as federal tax deductions are available for donations to non-profit charities. Since federal deductions for donations to religious organizations are Constitutional, the same applies to the credits in the AZ case. Respondents (those trying to kill the program) didn’t marshal a serious argument to the contrary. In fact, one of the cases they cite actually eviscerates their own argument, as I noted in Section II (b) of the Cato Institute Winn brief co-written by Ilya Shapiro and myself.
The rest of Respondents’ merits arguments are equally ineffectual, not only taking a form (relying on a moving statistical target) that has already been explicitly rejected by the Supreme Court in Zelman and elsewhere, but actually being wrong on the facts as well (see Section IV of the Cato brief linked above).
But while I’ve been exclusively focused on the merits of the case, it seems that the legal experts defending Arizona’s tax credit program have been arguing that the Respondents (originally, the Plaintiffs) never had a right to sue in the first place (“standing”), because they cannot show, in the context of Supreme Court precedents, how they have been harmed.
Both the SCOTUS blog’s reporter and independent experts seem to think the Court will overturn the 9th Circuit on the standing issue before even considering the merits, and I’m confident that the Court will overturn on the merits if it ever gets that far.
If the ruling comes down in either of those ways, modern education tax credit programs will retain their perfect record of never having been overturned by a court–a record not enjoyed by any other private school choice policy. The reason that is so very important is explained in the final section (V) of our Cato brief.
Another New Supreme Court Term, Another New Justice
Today is the first Monday in October, the traditional start of the Supreme Court term. While we have yet to see as many blockbuster constitutional cases on the docket as we did last term—which, despite the high profile 5-4 splits in McDonald v. Chicago and Citizens United actually produced fewer dissents than any in recent memory—we do look forward to:
- Two big free speech challenges, one over a statute prohibiting the sale of violent video games to minors, another the offensive protesting of a fallen soldier’s funeral;
- An Establishment Clause lawsuit against Arizona’s tax credit for private tuition funds (an alternative to educational voucher programs);
- Regulatory federalism (or “preemption”) cases involving:
- safety standards for seatbelts;
- an Arizona statute regarding the hiring of illegal aliens; and
- the forbidding of class-arbitration waivers as unconscionable components of arbitration agreements;
- Important ERISA and copyright cases;
- A case examining privacy concerns attending the federal government’s background checks for contractors; and
- A criminal procedure dispute regarding access to DNA testing that may support a claim of innocence.
Cato has filed amicus briefs in several of these cases—and in various others which the Court may decide to review later this year—so I will be paying extra-close attention.
Perhaps more importantly, we again have a new justice—and, as Justice White often said, a new justice makes a new Court. While her confirmation was never in any serious doubt, Elena Kagan faced strong criticism (including from me) on a variety of issues—most importantly on her refusal to “grade” past Court decisions or identify any specific limits to government power. The 37 votes against Kagan were the most ever for a successful Democratic nominee, which is emblematic of a turbulent political environment in which the Constitution and the basic question of where government derives its power figure prominently.
Given Kagan’s political and professional background, it is safe to assume that she’s not the second coming of Clarence Thomas. And because she replaces the “liberal lion” Justice Stevens, her elevation from “tenth justice” (as the solicitor general is known) to ninth is unlikely to cause an immediate change in issues that most divide the Court—particularly because she is recused from nearly half the cases this term. She could, however, add an interesting and nuanced perspective on a variety of lower-profile issues. Only time will tell what kind of justice Kagan will be now that she is, seemingly for the first time in her ambitious life, unconstrained to speak her mind.
Here’s to another interesting, varied, and (hopefully) liberty-enhancing year!
Clean Elections Act Dirties the First Amendment
In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.
Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”
Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial in a lawsuit challenging the law showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, the matching funds provision of the Clean Elections Act diminishes the quality and quantity of political speech.
In 2008, the U.S. Supreme Court in Davis v. FEC struck down a similar provision in the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents. Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.
Cato has thus filed a brief supporting a request that the Supreme Court review the lower court’s decision upholding Arizona’s Clean Elections Act. We highlight Davis (in which Cato also filed a brief) and numerous other cases that point to a clear conclusion: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money (Arizona’s act automatically disburses matching funds) is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of our political debate, but it ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit.
The Supreme Court will decide later this fall whether to review this case, McComish v. Bennett.
Feds Challenge Arizona Immigration Law
Yesterday, the Obama administration filed a lawsuit challenging the constitutionality of Arizona’s recently enacted law that is designed to curb illegal immigration. The Arizona law has not yet taken effect — that will occur on July 29. To generate more discussion and debate, Cato will be hosting a policy forum on the legal challenge and related issues on July 21. If the weather in DC continues to cooperate, it will feel like we are actually in Arizona.
Go here for Cato work related to immigration policy.
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