Why Democrats may benefit politically if Arizona immigration law is upheld

By Karoun Demirjian

Thursday, April 26, 2012 | 2 a.m.

WASHINGTON — Things didn’t go so well for the Obama administration at Wednesday morning’s oral arguments before the Supreme Court over whether Arizona’s controversial immigration enforcement law should be struck down for conflicting with federal enforcement priorities.

But if the government loses this case, it may be exactly the outcome the Obama campaign and Democrats in competitive races in Nevada and across the country were hoping for.

Democrats have long been angling against Arizona’s immigration law, which requires law enforcement officers to check the immigration status of anyone they detain for other reasons. They’ve accused Arizona of using the law to racially and ethnically profile people — especially those of Hispanic descent, to arrest and detain without cause, and to scare undocumented immigrants out of Arizona.

Privately, Democratic campaign operatives admit they wouldn’t mind seeing the court rule against the government on this case, because it would play so well on the campaign trail.

“It becomes a rallying cry for Latinos, and they can take out their anger on Republicans,” one Nevada Democratic operative said. “We have a Republican presidential candidate at the top of the ticket who has promised to veto the Dream Act ... and Republicans in Congress refuse to pass comprehensive immigration reform.”

The issue has taken on special prominence in Nevada, where Hispanics have been a key voting bloc for Democrats. Should the Arizona law stand, Democrats could continue to cast themselves as heroes in the fight to overturn it and vilify Republicans — including presumed nominee Mitt Romney — for supporting it.

That fight is already under way in Congress, where congressional Democratic leaders promised Tuesday to introduce legislation to undo the Arizona statute, should the Supreme Court uphold it.

“I will introduce legislation which will reiterate that Congress does not intend for states to enact their own immigration enforcement schemes,” Sen. Charles Schumer, head of the Senate Democrats’ chief policy communications arm, said Tuesday. “States like Arizona and Alabama will no longer be able to get away with saying they are simply ‘helping the federal government’ to enforce the law.”

The central legal issue in the Supreme Court case is whether Arizona’s take-all-prisoners approach to enforcing the federal immigration laws within the state interferes with the federal government’s ability to determine how those laws should be enforced.

The justices didn’t really seem to think so.

“What’s wrong about states enforcing federal law? There is a federal law against robbing federal banks,” Justice Antonin Scalia argued. “Does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it’s just an amateur bank robber, you know, we’re going to let it go.”

Chief Justice John Roberts pointed out that the federal government didn’t lose its authority to determine how to deal with undocumented immigrants under SB1070: The Arizona law only dictates how people are detained until their immigration status is determined. The federal government can then decide how they should be handled.

“It’s still your decision,” Roberts said to Solicitor General Donald Verrilli. “If you don’t want to know who’s in this country illegally, you don’t have to.”

It was a political hot potato to throw at Verrilli. He argued Arizona officials are free to detain people with suspicious immigration status as they see fit. The problem came when the Arizona Legislature required them to do so.

Justice Samuel Alito quickly poked holes in that argument.

“You seem to be saying that what’s wrong with the Arizona law is that the Arizona Legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the Arizona Legislature, for whom they work, and follow the priorities of the federal government, for whom they don’t work,” Alito said.

Even those justices who appeared to personally oppose the Arizona law seemed perplexed by the government’s rationale.

“I’m terribly confused by your answer,” Justice Sonia Sotomayor said. “Your argument that systematic cooperation is wrong — you can see it’s not selling very well. Why don’t you try to come up with something else?”

The justices did seem concerned about the potential that the Arizona law could cause overly extended detentions and detention of citizens — a possible violation of Fourth Amendment rights. They also raised the concern it could prompt racial profiling or racially based harassment — a potential violation of Fourth and 14th Amendment rights.

But Verrilli didn’t make either of those arguments.

If the justices’ lines of questioning Wednesday are any indication of their opinions in the case, the Arizona statute — and laws like it in five other states, including another Nevada neighbor, Utah — will stand. With Justice Elena Kagan’s recusal, SB1070’s critics were already at a disadvantage. It’s extremely unlikely that five of the eight justices remaining will vote to undo Arizona’s law.

In that case, there’s only one thing Congress can do to assert its authority over Arizona’s practices: Change the federal law.

And that’s what plays so neatly into Democratic campaigners’ hands.

Since George W. Bush left the White House, it’s been Democratic leaders alone who have been pushing for a resumption of the comprehensive immigration reform debate, during which Congress could set more exacting rules on police enforcement and work eligibility screenings, as well as introduce laws like the Dream Act, and new visa regimes that would formalize the status of many of the estimated 11 million undocumented immigrants in the United States.

Democrats, starting with President Barack Obama, have argued that there’s an urgency to solving this problem, especially now that the recession has lessened it: Recent data from the Pew Research Center show that for the first time since the Great Depression, more undocumented immigrants are leaving the country than are coming in.

But in Obama’s nearly four years as president, no significant piece of immigration legislation has moved through Congress — and polls show Hispanics have started to lose their patience.

Where hope doesn’t work, however, fear might.

The power of the Latino electorate has played a significant role in states like Nevada. In 2010, record-high turnout among Hispanic voters helped put Sen. Harry Reid over the top against his Republican challenger, Sharron Angle, who had alienated many such voters with racially insensitive comments in the last few weeks of her campaign.

A Supreme Court go-ahead for laws like Arizona’s puts another immigration bogeyman — two actually, since Utah has an immigration law similar to Arizona’s — at Las Vegas’ door.

“If it’s upheld, they can use it as a mobilizing tool for Latino voters in the Southwest — it’s just another way they can point to ‘Republican extremism,’ in particular because (Mitt) Romney’s come out in favor of it,” said UNLV political science professor David Damore. “It’s always helpful to have a reminder.”