July 31, 2010

Arizona governor looks into mooting own case

Republican Governor of Arizona Jan Brewer, who signed the law and appealed a ruling blocking its most controversial sections, said Friday she would consider changes to "tweak" the law to respond to the parts U.S. District Judge Susan Bolton faulted. ... Brewer has said she'll challenge the decision all the way to the Supreme Court.


William Tyroler said...

The politics of this litigation could well be problematic for the Democrats. Consider, first, the timing of the injunction appeal, which will be argued the week of November 1. Just in time to affect the elections.

This might not matter so much if the issue were inscrutably technical, beyond the interest of the electorate. And nominally, it is: I'd wager that 99.9% of the general public literally know nothing about preemption. Include me in that number. But more concretely, the case is about the federal government's willingness to enforce immigration law. The injunction adopts the Obama administration's argument that state requests for immigration status "would 'impermissibly shift the allocation of federal resources away from federal priorities.'" (Injunction Order, p. 16.) This isn't the sole basis for the injunction, but it doesn't have to be. The idea is that the Arizona law would compel the feds to vigorously enforce immigration laws, and this litigation announces loud and clear that they've better things to do -- at least, that is how Congressional candidates will likely characterize it.

Maybe the injunction reaches a sound result under the preemption doctrine. Maybe a "non-vigorous" enforcement policy is wise. I sure don't pretend to know such things. But an overturn of a relatively popular law on the ground that the feds aren't sufficiently interested in enforcing immigration laws isn't, I don't think, going to sit well with an already up-in-arms electorate.

illusory tenant said...

Got that right. Apparently the Obama Justice Department isn't as politicized as some might claim.

William Tyroler said...

Apparently the Obama Justice Department isn't as politicized as some might claim

Good point. They would have gotten more political mileage but less legal traction, I think, by arguing the potential racial implications of the law. Instead, they chose the highly technical, but winning, legal argument -- preemption -- even though adverse political consequences could well follow.

illusory tenant said...

House Democrats aren't as politicized either.