Mojo - June 2012

How Jan Brewer and Many Others Got the Supreme Court's Immigration Ruling Wrong

| Tue Jun. 26, 2012 10:32 AM EDT

Arizona Governor Jan Brewer sounded triumphant Monday as she declared that the "heart" of SB 1070, Arizona's harsh anti-illegal immigration law, had been "upheld" by the Supreme Court.

"The heart of Senate Bill 1070 has been proven to be constitutional. Arizona’s and every other state’s inherent authority to protect and defend its people has been upheld."

There's just one problem: The high court did not find any provision of Arizona's law to be constitutional—it did not "uphold" any part of the law. The distinction here is a technical legal one, and plenty of reporters and media outlets got it wrong. (My first tweet about the ruling was wrong. Politico, the Los Angeles Times*,  and PBS' Newshour also initially misreported the ruling.) Other supporters of the law, including Maricopa County, Arizona Sheriff Joe Arpaio and Kansas Secretary of State Kris Kobach (who is a lawyer) also referred to part of the law being "upheld."

Here's what the Supreme Court actually did on Monday. The justices decided that the lower court that prevented SB 1070 from taking effect was mostly correct—because most of the law's provisions were likely unconstitutional. The Supreme Court declined to block the "papers, please" provision of the law—which Brewer refers to as its "heart"—that requires local authorities to check the immigration status of anyone they arrest. But the high court did not find the controversial provision constitutional, and so it was not "upheld." Instead, the high court deferred judgment on the matter. Saying that part of the law was "upheld" incorrectly implies that the court decided the "papers, please" provision was constitutional. The justices were actually decidedly agnostic on that point.

"The majority said it didn't know enough about how the law would work in practice to rule decisively. Because the law has never gone into effect, it just wasn't clear whether the law would conflict with federal policy." says Adam Winkler, a professor at the University of California Los Angeles School of Law who wrote a column for the Daily Beast noting that many media outlets got the distinction wrong. "The court said to Arizona there's a right way and a wrong way to apply this law and we're watching you."

Although it's anyone's guess how the court might ultimately rule on the "papers, please" provision, Justice Anthony Kennedy's opinion gives very specific guidance on how that part of the law should be enforced. That suggests that in the future, the court could very well find the provision unconstitutional—meaning that Brewer's celebration was beyond premature. 

"They absolutely left open the possiblity of future challenges," says Elizabeth Wydra, chief counsel at the liberal Constitutional Accountability Center. "We achieved victory on three out of the four provisions [Monday], and I think it's going to be a delayed victory on the fourth."

*Correction: This post previously stated that Washington Post reported that the section was "upheld." The headline was actually "upheld for now," which is accurate. 

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We're Still at War: Photo of the Day for June 26, 2012

Tue Jun. 26, 2012 8:39 AM EDT

Spc. Shane Marks, 1st Battalion, 17th Infantry Regiment, 2nd Infantry Division, provides security in an overwatch position during Operation Southern Strike II in Afghanistan on June 6. US Army photo by Sgt. Brendan Mackie.

Mapping the Battle Over Arizona-Style Immigration Laws

| Tue Jun. 26, 2012 5:00 AM EDT

As MoJo's Adam Serwer reported Monday, the Supreme Court voted down three of four provisions of Arizona's controversial immigration law, SB 1070, but allowed one harsh measure to stand: The court upheld (for now)* section 2B, which requires law enforcement officers to determine the immigration status of suspects during lawful stops, detentions, or arrests. Along with Arizona, five other states—Alabama, Georgia, Indiana, South Carolina, and Utah—have similar "show your papers" laws on the books. Meanwhile, from 2010 to 2011, 30 state legislatures rejected bills modeled after Arizona's.

This year, with the uncertainty surrounding the impending court decision and with legislators unwilling to deal with the type of fallout seen in Alabama, only five states introduced such legislation: Kansas, Mississippi, Missouri, Rhode Island (PDF), and West Virginia. The Missouri, Mississippi, and West Virginia bills failed; Kansas' regular legislative session has ended without action on the bill, and the same outcome appears likely in Rhode Island, whose session is over July 2. (Four of the five states—Rhode Island excluded—had already tried and failed to pass similar bills previously.)

Following Monday's Supreme Court ruling, Nebraska state Sen. Charlie Janssen, sponsor of a 2011 Arizona-style bill, told the Associated Press he was unsure if he'd repropose it moving forward, saying, "I certainly wouldn't bring something back that the US Supreme Court just shot down." But Mississippi Republican state Rep. Becky Currie, cosponsor of the state's HB 488 (PDF), is undaunted. She told the Jackson Clarion-Ledger that the ruling merely would affect how she wrote future anti-immigrant legislation. Currie also told the paper that she expected a future Mississippi immigration bill to have a "self-deportation effect": "As soon as the bill passes, illegal immigrants will leave the state."

Correction: This article initially claimed that the Supreme Court upheld section 2B, which is incorrect. Read Serwer's Tuesday post to see why.

Scalia Cites Slavery-Era Laws in Immigration Dissent

| Mon Jun. 25, 2012 1:59 PM EDT

Justice Antonin Scalia's angry dissent in the case over Arizona's harsh immigration law is filled to the brim with partisan bile and dismissive rhetoric directed at his colleagues on the court. Scalia directly criticizes Obama's immigration policy of deferring deportation for potential DREAM Act beneficiaries and describes Arizonans as being "under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy." Scalia also suggests that "we should cease referring to [Arizona] as a sovereign State."

But even among these eyebrow-raising passage is one section that stood out from the rest. Explaining why he would have let the Arizona law stand in its entirety, rather than invalidating most of its provisions as the court majority ultimately did, Scalia runs through some of the history of immigration law in the US and cites slavery-era statutes meant to restrict the movement of free blacks across state lines.

Notwithstanding "[t]he myth of an era of unrestricted immigration" in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only pro­vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.

While this might seem like an odd way to support his argument, Adam Winkler, a professor at the University of California-Los Angeles School of Law, warns against reading too much into it. "I think what he's getting at is that there was a time when states had authority over this issue," Winkler says, "but that was when Congress hadn't enacted significant regulation on immigration." 

With the exception of one provision, which Justice Anthony Kennedy's opinion implied could be invalidated in the future, the high court agreed that the states don't get to legislate where the federal government has already set immigration policy. Or as Winkler appropriately puts it, given the Obama administration's record of aggressive enforcement of immigration law, "the federal government is the only one authorized to make life miserable for undocumented immigrants."

We're Still at War: Photo of the Day for June 25, 2012

Mon Jun. 25, 2012 9:46 AM EDT

Staff Sgt. James Broome references an electronic technical order for an F-16C Fighting Falcon during Red Flag-Alaska 12-2 at Eielson Air Force Base in Alaska on June 18. Red Flag-Alaska is a series of Pacific Air Forces commander-directed field training exercises for U.S. forces, providing joint offensive counter-air, interdiction, close air support, and large-force employment training in a simulated combat environment. Broome is a crew chief assigned to the 51st Aircraft Maintenance Squadron out of Osan Air Base in South Korea. US Air Force photo by Tech. Sgt. Michael R. Holzworth.

GOP Candidate Says Tammy Baldwin's Philosophy "Has Its Roots" in Communism

| Mon Jun. 25, 2012 8:40 AM EDT
Wisconsin Sen. Robert La Follette, Sr. making a radio speech. He was a progressive, not a communist. There's a difference.

Rep. Tammy Baldwin (D) is running for Senate in Wisconsin, where she will probably end up facing former GOP Gov. Tommy Thompson. But Thompson faces a challenge from the right—Eric Hovde, a wealthy former CNBC talking head, who has apparently decided that the best way to win a Republican primary these days is to suggest the Democratic candidate is a communist. Here's Hovde:

"I fundamentally disagree with Tammy on almost everything. She has a more liberal voting record than almost anybody in Congress," he told The Hill in a recent interview. "Her philosophy has its roots in Marxism, communism, socialism, extreme liberalism—she calls it progressivism—versus mine, which is rooted in free-market conservatism."

Needless to say Baldwin, who does not support government ownership of the means of production, is not a Marxist, a socialist, or a communist. And it's especially sad to see a Republican candidate equating progressivism with communism in Wisconsin, a birthplace and longtime stronghold of the progressive movement. Robert La Follette, a leading progressive Republican, was Wisconsin's governor from 1901 to 1906 and one of its senators from 1906 until 1925. LaFollette was succeeded in the Senate by his son, "Young Bob," who served until 1946, when he lost a GOP primary to the infamous red-hunter Joseph McCarthy. Here's a nice explanation of progressivism from the Wisconsin Historical Society:

Progressive Republicans... believed that the business of government was to serve the people. They sought to restrict the power of corporations when it interfered with the needs of individual citizens. The Progressive Movement appealed to citizens who wanted honest government and moderate economic reforms that would expand democracy and improve public morality... In Wisconsin, La Follette developed the techniques and ideas that made him a nationwide symbol of Progressive reform and made the state an emblem of progressive experimentation. The Wisconsin Idea, as it came to be called, was that efficient government required control of institutions by the voters rather than special interests, and that the involvement of specialists in law, economics, and social and natural sciences would produce the most effective government.

The state historical society's site has lots more on progressivism and Wisconsin history, including many primary source documents. Perhaps Hovde should familiarize himself with it.

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Anatomy of a Non-Attack Attack Ad

| Mon Jun. 25, 2012 5:00 AM EDT

It takes more than secret donors to run a dark-money group—it takes chutzpah. For a perfect example of that, consider the letter that the American Future Fund sent to the Federal Election Commission in April, alerting the body that "AFF wishes to speak out on issues of national policy significance with minimal government intrusion into its affairs."

In its missive, the conservative 501(c)(4) "social welfare" group asked the FEC to issue formal advice on eight ads that it was planning to make. Specifically, AFF wanted to know if the proposed ads would trigger FEC disclosure requirements. If groups like AFF make ads that mention candidates by name but don't expressly tell you to vote for or against them, they have to file spending reports with the FEC. (They do not have to reveal their donors—though a federal court case could change that. More on that below.)

AFF, though, didn't "want to subject itself to the burden" of reporting its ad spending to the FEC. If it could convince the FEC that its ads were true issue ads and had nothing to do with any specific candidate, it would be in the clear.

Corn on Hardball: Why Obama Appeals to Latino Voters, But Romney Can't

Fri Jun. 22, 2012 6:02 PM EDT

Compared to Obama's rousing speech today on immigration and the DREAM Act, Romney's speech yesterday drew only faint applause in front of the same group, the National Association of Latino Elected and Appointed Officials. Mother Jones's Washington bureau chief David Corn discusses how the candidates are competing for this demographic on MSNBC's Hardball.

Obama Immigration Speech: Latinos Should Blame Republicans for Blocking Immigration Reform

| Fri Jun. 22, 2012 2:11 PM EDT
Obama shakes hands with supporters following a speech on immigration reform in 2011.

It was President Obama's turn to address the National Association of Latino Elected and Appointed Officials on Friday, the day after Mitt Romney spoke to the same group. Obama emphasized his commitment to passing the DREAM Act and comprehensive immigration reform. He reminded the audience that he voted for President George W. Bush's immigration reform bill as a senator, and that the bill had been scuttled by immigration restrictionists from Bush's own party.

The president's reception at NALEO was very warm—he drew several standing ovations. His defense of his decision to exempt DREAM Act-eligible unauthorized immigrants from deportation was well-received. "They are Americans in their hearts, in their minds, in every single way but on paper—and all they want is to go to college and give back to the country they love," Obama said. "Lifting the shadow of deportation and giving them a reason to hope was the right thing to do."

Obama didn't mention Romney by name, but he did refer to his rival's pledge to veto the DREAM Act. "Your speaker from yesterday has a different view," Obama said. "In his speech, he said that when he makes a promise to you, he’ll keep it. Well, he has promised to veto the DREAM Act, and we should take him at his word."

The president also directly blamed Republican partisanship for the collapse of immigration reform efforts. Here's the key section of his speech:

In the face of a Congress that refuses to do anything on immigration, I’ve said that I’ll take action wherever I can. My Administration has been doing what we can without help in Congress for more than three years. And last week, we took another step. On Friday, we announced that we’re lifting the shadow of deportation from deserving young people who were brought to this country as children. We should have passed the DREAM Act a long time ago. It was written by members of both parties. But when it came up for a vote two years ago, Republicans in Congress got together and blocked it. The bill hadn’t really changed. The need definitely hadn’t changed. The only thing that had changed, apparently, was politics.

This is not an entirely accurate portrayal of events. Republicans did band together to block the DREAM Act, including several former co-sponsors of previous versions of the bill. But they were joined by skittish centrist Democrats. The final vote was 55 to 41, with five Senate Democrats joining the opposition. Had Obama delivered the votes of his own party, the DREAM Act would have passed. And if Republicans who previously supported the legislation hadn't decided it was terrible after Obama supported it, it would have passed. 

The president has a big advantage over Romney with Latinos, but his task is arguably harder. With little progress on reform but a verbal commitment to policies Latino voters prefer, Obama has to seriously energize Latino voters to have a chance at retaining the Oval Office. Romney, on the other hand, doesn't have to win a majority of the Latino vote—he just has to convince enough of them he wouldn't be that bad. 

Does Obama Have a Plan for Immigration Reform?

| Fri Jun. 22, 2012 11:45 AM EDT
Obama discusses immigration reform with former Rep. Joseph Cao (R-La.) in 2009.

Mitt Romney's speech on immigration policy before the National Association of Latino Elected and Appointed Officials on Thursday avoided the two big questions regarding immigration reform. Voters still don't know what Romney would do with the approximately 11 million undocumented immigrants already in the US. Last week, President Barack Obama announced a new Department of Homeland Security directive granting work authorization and temporary stays of deportation to certain young illegal immigrants brought to the United States as children. But voters don't know what Romney would do with those people, either.

Jennifer Rubin, the Washington Post's pro-Romney blogger, is deeply upset that reporters have pointed out that the Romney speech was evasive. She has lashed out at the media for "spinning" for the White House, contending that "Mitt Romney came out with his own immigration plan, which was broader than the president's":

The hypocrisy is jaw-dropping. Where is Obama's solution? Well, wink-wink, he wants simply to legalize all of them, his defenders say. Oh really, then why not say so? And would they be citizens? There is a gulf as wide as the Grand Canyon between what Obama has hinted at and what he has done or even articulated in a reelection campaign.

The White House's position on both of these matters is available to anyone with access to a web browser and the ability to use Google. The Obama administration pushed for the DREAM Act in 2010 only to see it filibustered to death by Senate Republicans and a few Democrats. The White House's Blueprint for Immigration Reform states that the president favors a path to legalization for undocumented immigrants in the US provided they "register and undergo national security and criminal background checks." They will also have to "pay their taxes, pay a fine, and fully integrate into the United States by learning English." Obama also supported the immigration reform plan put forth by Senators Chuck Schumer (D-NY) and Lindsey Graham (R-SC) that Graham subsquently abandoned.

Obama's commitment to following through on immigration reform can and should be questioned—many of the president's own allies were unsatisfied with his approach. But Romney's objections to the president's policy are made in bad faith and completely ignore Republican efforts to kneecap immigration reform. At any rate, Rubin is flat wrong: The president's position on both of these major issues is entirely clear.

That's not to say Romney's speech offered nothing of value. He stated very clearly Thursday that "we may not always agree, but when I make a promise to you, I will keep it." During the primary, Romney committed himself to a policy of forcing out undocumented immigrants through "self-deportation," and pledging to veto the DREAM Act. Voters who care about immigration policy should take Romney at his word that he'll keep those promises.