The People of the United States vs. the People of Arizona – July 12, 2010

Do you remember the good old days when the Bush Administration was accused of politicizing the Justice Department?  I seem to recall the charge centered around the fact that Bush’s Attorney General replaced certain of the U.S. Attorneys around the country because – well, we don’t know exactly why.  The natural assumption by the Bush-deranged press was that they wouldn’t toe the Administration’s felonious line on whatever political vendetta they had in mind.  Never mind that every U.S. Attorney serves at the pleasure of the President, who can fire any one he wants for whatever reason he wants, and never mind that Bill Clinton asked for the resignation of every single one of his US Atty’s shortly after his inauguration before reinstating many of them.  Despite those bothersome facts, the standard shorthand was that the Bush Administration had politicized the Justice Department.

So what do we make of Eric Holder?  First he makes the highly political – nay, national-security – decision that the government was going to try to prosecute Khalid Sheikh Mohammed right there in the heart of New York.  Astonishingly, President Obama hid behind the supposedly objective legal judgement of his AG, rather than either owning up to his own decision (which it surely must have been, or he is not in charge of serious elements of his own Administration), or exerting a certain adult supervision over decisions that are clearly above an AG’s pay grade.  And sure enough, Holder had to walk that one back in the face of unremitting opposition from everyone in the Senate and everyone on the streets of the Big Apple.  But for the record, Obama’s DOJ wants to apply US criminal law to international terrorists who by rights do not deserve the protections even of the Geneva Convention, never mind the US Constitution.
Then we get the unedifying spectacle of the Holder Justice Department refusing to press charges against the New Black Panther Party for voter intimidation, despite unmistakable videos of NBPP members doing just that, dressed in paramilitary uniforms and blocking the entrance to polling stations with night sticks.  Their leader is quoted saying such things as “you’re gonna have to kill some crackers, you’re gonna have to kill some of their babies!”  In fact, because they didn’t show up in court, the voting section of the Justice Dept won a default judgement in Federal Court against the four principal defendants.  And then the Holder Justice Dept ordered the case dropped.  Apparently, according to an official who resigned so he could tell his story, the Administration ordered the DOJ not to pursue voting-rights cases against black people.
But, remember, it was Bush that politicized the Justice Department.
And now, we get the entirely political decision to sue the State of Arizona for passing a law that is completely consistent with the legislative rules and practices of that state.  We’ll get to the merits of that case in a moment, but it gives one pause to hear Holder say, as he did this weekend, that if this case is not successful they reserve the right to bring further actions against Arizona over other Federal issues.  In other words, they have decided to go after Arizona, not because they have determined that a Federal statute has been broken, or that a serious Constitutional conflict has been created by passage of this law, but because the law itself is an affront to this Administration and they are determined to prevail over it.
Remember that senior Administration officials, including Holder himself, were critical of the Arizona law immediately after its passage, citing almost uniformly the risk that it would be used for racial profiling and create civil rights issues among lawful residents in the state.  It didn’t help his case when Holder was forced to admit (as was Homeland Security Secretary Janet Napolitano, another early and vocal critic) that he actually hadn’t read the law and his view of its civil rights risks was uninformed.
And then, when the suit is actually unveiled, it ignores the civil rights angle altogether, and attacks the law on Constitutional grounds, saying that only the Federal Government is empowered to make immigration policy.  The famous term that was used was “patchwork,” as in, “Constitutional and Federal law do not permit the development of a patchwork of state and local immigration policies throughout this country.”  In other words, the Feds set the laws and set the enforcement of those laws, and any state or other entity that decides to conduct its own policy is encroaching on Federal turf.
Tell that to Maine, Oregon, and Alaska, or for that matter, San Francisco, Washington DC, Phoenix, and 20 other cities throughout the USA – all of them, in open defiance of US immigration law and policy, have declared themselves to be sanctuaries for illegal immigrants.  In other words, where the Arizona law actually requires law enforcement to work toward the same end as the Federal law, these governments have decided that Federal law doesn’t apply within their boundaries, and they will openly subvert it.  Not only that, there are other states, such as Massachusetts, where the government has told their state troopers not to ask about the legal status of people they stop, while right next door in Rhode Island, it is a requirement.  In New York, city employees are by law forbidden to report illegal immigrants to Immigration and Customs Enforcement (ICE).
In fact, there already is a “patchwork” of immigration policies, and where you happen to be has a very large impact on your fate if you are an undocumented worker in the US.  Moreover, many of those patchwork policies are in direct contradiction to current Federal policy.  So why then is the Obama Administration all in a lather about Arizona’s law?  After all, it is more restrictive in its practice than the Federal law it supports.  Feds can stop anybody for any reason to ascertain his or her immigration status – even, to use Obama’s formulation, some hardworking immigrant who goes out to get his kids some ice cream.  Arizona’s law, on the other hand, has clear rules of engagement.  The subject has to be stopped for another legitimate law enforcement reason; the officer is expressly forbidden to make the stop for reasons of race or appearance or language.  No such constraints on our men from ICE.  Yet Holder and his boss are concerned about civil rights violations in Arizona.
The answer, of course, is that it’s all political.  Obama sees that his grand coalition, that sea of demographic groups that washed him up on the shore of the White House eighteen months ago, is in danger of splintering.  The young are disaffected and disappointed; the gays are furious that don’t ask/don’t tell and the Defense of Marriage Act still exist; the environmentalists are angry that Cap and Trade hasn’t passed, and of course now the Gulf is being despoiled; the Jews are furious at Obama’s dissing of Bibi Netanyahu; and the Latinos were promised immigration reform in the first year.
So, one by one, Obama is turning his charm and a bit of policy toward each of these groups to get them interested in the polls come November.  That’s the best explanation for the otherwise incomprehensibly antagonistic step of bringing the Justice Department into direct conflict with a state that only is trying to do for itself what the Feds should do and haven’t succeeded in doing.  After all, if it weren’t for murdered ranchers, the epidemic of kidnappings in Phoenix, the fact that there are 1100 violent offenders in Maricopa County jails who are illegals, and all the rest, this law would never have passed.
And therein lies the great complication for Obama.  This law enjoys some 70% approval in Arizona, and something like 60+% across the country as a whole.  Folks see this as a reasonable measure to solve a problem that has festered for too long.  I think the general consensus is that if we manage to secure the border and gain control of our own fate as to people trying to sneak in, we can take a reasoned look at how to revise our current laws so that honest people who want to come here to work – and honest employers who want to employ them – can match supply to demand, and we can figure out what to do with those who are already here and living otherwise honest lives.  But the border comes first.
I’m frankly surprised at the political calculation Obama is making here.  It is probably smart from a long term perspective to deny the GOP any toe-hold among Latinos, who are the fastest-growing demographic in the country, and making an issue of this will probably make it harder for Latinos to vote with the elephant.  On the other hand, when Democratic Governors and Congresspeople across the country are dying to have a strong economic case to tell their voters, they get this gratuitous slap from the Administration, raising an issue that is bound to send independents to the other side.  Obama has proven he is willing to sail against the wind of popular opinion – witness the strong and continuing opposition to Obamacare – but this is different.  Instead of forcing through a policy that he undoubtedly believed in despite what others thought, as with health care, here he is sacrificing one source of political support for the sake of another.  Perhaps he is admitting that the 2010 election is a bust, and maintaining the base is where he needs to be for 2012.
Whatever the case, make no mistake that this lawsuit has anything to do with the dutiful enforcement of the law with which the Department of Justice is supposed to concern itself.  It is purely and simply a political gesture, continuing a pattern we have already seen repeatedly from the Holder DOJ.  Even though it was Bush that politicized the enforcement of Federal law.
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