The run-up to Thursday’s now-scheduled health care decision has inspired partisan nervousness reminiscent of the 2000 Florida recount. But Monday’s five-to-three Supreme Court ruling, deftly filleting Arizona’s show-me-your-papers immigration law also carries lasting implications for the next president.
The decision in Arizona v. United States was difficult to parse quickly—hence the wildly conflicting online headlines. The hyperbolic excess of a presidential election year added to the confusion as every county commissioner and state senator became an expert on constitutional law as soon as they saw a TV camera.
[Related: Ariz. implements law, feds push back]
While one section of the get-tough Arizona law temporarily survived judicial review (depending on how it is implemented), the overall decision was a rebuke to states-rights forces that have attempted to enact immigration policy outside Washington. As Justice Anthony Kennedy unequivocally expressed it in the majority opinion, “Arizona may have understandable frustration with the problems caused by illegal immigration … but the state may not pursue policies that undermine federal law.”
The larger meaning of Arizona v. United States is that whoever is elected in November must revamp federal immigration law, which currently has more band-aids than an adventurous toddler. Yet it is hard to think of a topic, other than health care, that has been more of a 21st-century black hole for policymakers in both parties than immigration.
A futile commitment to immigration reform (and the un-winnable Afghanistan War) united two wildly different presidents--Barack Obama and George W. Bush. Despite presidential addresses and promises to Latino leaders, despite White House strategy sessions and cold-blooded political calculus, reform legislation has never made it out of Congress. The closest it came was under Bush in 2006, when a bill passed the Republican House only to die by filibuster in the GOP-majority Senate.
[Related: Immigration from Mexico down well before Ariz. law]
Senate patriarchs Ted Kennedy and John McCain negotiated the broad contours of that legislation in 2005. And, with some jiggering, both Bush and Obama have followed the Kennedy-McCain formula. Illegal immigrants currently in this country with clean records would be allowed to begin a lengthy path to citizenship after they paid for a fine for violating immigration law. Future illegal entry would be discouraged by enhanced border enforcement. And America would develop a legal guest worker program that would satisfy both high-tech companies desperate for math Ph.D.s and agricultural interests that perennially need low-wage laborers.
It was the kind of Grand Bargain that won plaudits from newspaper editorial writers and distinguished scholars at think tanks. It attracted the support of major stakeholders (a word beloved by the authors of blue-ribbon foundation reports) because there was something in the package for everyone. Latino groups got the path to citizenship; the Chamber of Commerce signed on because of the guest worker program; law enforcement groups were attracted by the promise of strict border control; the AFL-CIO was spared competition from an invisible army of illegal workers; and smart strategists in both parties (from Karl Rove to David Plouffe) recognized that championing immigration legislation would attract Hispanic votes.
The politics were diabolically clever—and have gotten nowhere.
The Dream Act, so beloved by the Obama administration, was an admission of failure. Immigration-rights supporters took the most emotionally arresting cases (a high-school valedictorian threatened with deportation—made-to-order for a 30-second campaign commercial) and packed them into one bill. Maybe America would never provide legal status for a 48-year-old Salvadorian working off-the-books for a landscape firm, but at least illegal immigrants brought to this country as children might get a foot in the door.
[Related: Scalia blasts Obama's immigration stay]
Nope, that failed too. The recent Obama election-year directive to halt efforts to deport these young immigrants is a temporary expedient. Rather than a permanent policy change, it could be overturned in an instant by President Mitt Romney without consulting Congress or the courts. Romney, to be sure, has been studiously vague about what he would do if elected. His current mantra is that he favors a “long-term solution,” which is about as tangible as Richard Nixon’s so-called “secret plan” to end the Vietnam War.
There are easy explanations for the failure of immigration reform to make it through Congress for almost a decade. There is a segment of the electorate—white, middle-aged and older—who refuse to acknowledge that the ethnic makeup of America has changed since 1958. The political potency of attack-ad phrases like “amnesty for illegals” and “rewarding lawbreakers” compounds the problem for supporters of comprehensive immigration reform. The economic downturn has made millions of Americans feel beleaguered which cuts into their feelings of compassion for the illegal under-class.
And, yes, there is continuing concern about border security, even if a major part of the problem is foreigners arriving legally as tourists and then overstaying their visas. (Passport lines at Kennedy airport somehow don’t cut it as frightening visuals for campaign commercials).
All that is fine as far as it goes—but the arguments citing nativism, poisonous politics and economic dislocation miss something important. Voters have had it with Grand Bargains no matter whether they come from the center-right or the center-left. Beyond immigration, this applies to the deficit and, yes, health care, where Obama bought off everyone from the insurance companies to teaching hospitals to liberal groups in an effort to pass the bill.
The underlying problem is the worst breakdown in respect for institutional authority since the 1960s. In case you missed it, this hasn’t been a glorious century for elite experts: the strategic geniuses who led Bush into Iraq, the bipartisan chorus warbling over deregulation of Wall Street, even the Supreme Court is falling into disrepute. A recent poll by the Pew Research Center gauged the court’s favorable rating (52 percent) at a 27-year low. And my guess is that it will drop even lower after Thursday’s health-care decision.
Grand Bargains don’t work if voters fail to trust the experts who are supposedly negotiating on their behalf. Complex compromises that attempt to buy off competing stakeholders (I do love that pompous word) require voters to believe that interest groups are working in their interest. That becomes an insoluble problem when elites in most fields have seemingly forfeited the trust of average Americans.
In Arizona v. United States, the Supreme Court upheld the vital principle that the immigration mess must be solved along the banks of the Potomac River. What it means for the next president is that each aspect of immigration policy needs to be sold to the voters on its own merits rather than wrapped up in a we’re-the-experts backroom compromise.
Despite the dismal legislative record over the last decade, I cling to faith that illegal immigrants with upright records can win legal status in a nation that boasted open borders until the 1920s. Call me naïve, but I still believe in America’s better angels.