Winning Progressive

While the Supreme Court on Monday did not issue its long-awaited ruling on health care reform, it issued another very important decision regarding the validity of Arizona’s anti-immigration SB 1070.  That controversial law, passed in 2010, sought to get undocumented immigrants to leave the state of Arizona through a strategy of “attrition through enforcement.”  In particular, the law established state law provisions making it illegal for an undocumented immigrant to reside or work in the state, requiring state and local law enforcement to verify the immigration status of people they had a “reasonable suspicion” were undocumented, and effectively forcing immigrants to have to carry papers to demonstrate their status.

The Obama Administration Department of Justice rightfully challenged the constitutionality of SB 1070 in federal court, largely on the grounds that federal immigration law, and the need for a single, consistent immigration law that applies throughout the US, preempts efforts by states to establish conflicting or inconsistent immigration requirements.  In the case of Arizona v. United States, the Supreme Court on Monday, with one significant and problematic exception, agreed with the Obama Administration’s arguments.

Here are the details:

Confirms Federal Primacy on Immigration: 

At its core, the Arizona decision is important because it reaffirms that immigration is an issue of federal law which preempts efforts by states, such as Arizona, to establish their own immigration laws and policies that conflict or are inconsistent with federal law.  As the Court explained:

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. . . . . . The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.  (slip op. at 3, 4)

Given the primacy of federal law on immigration issues, the Court invalidated three portions of SB 1070 on the grounds that they were inconsistent with, and preempted by, federal law.  First, the Court found that Section 3 of SB 1070, which made it a state misdemeanor to fail to complete or carry alien registration papers, was preempted by federal law, which makes it a crime for an immigrant to willfully fail to register, but not for failing to carry registration papers  (slip op. at 9-11).

Second, the Court struck down Section 5(c) of SB 1070, which made it a state crime, punishable by a $2,500 fine and six months in prison, for an undocumented immigrant to knowingly apply for, solicit, or perform work.  The Court ruled this provision was preempted by the 1986 federal Immigration Reform and Control Act (“IRCA”) which, among other things, makes it illegal for employers to hire or recruit unauthorized workers and imposes various civil and criminal penalties for violations. While IRCA imposes some civil penalties on undocumented immigrants engaged in illegal employment, it primarily focuses enforcement on employers, not undocumented employees, and the Court ruled that a state cannot change that focus.  (slip op. at 12-15).

Third, the Arizona Court found federal preemption of Section 6, which authorized state police to arrest, without a warrant, any person who the officer had probable cause to believe that the person has committed an offense that makes him or her removable.  That provision conflicted with federal law, which authorizes arrest for a deportable offense only upon issuance of a federal warrant, and gives state officials a role in such enforcement only upon an agreement between the federal government and the state about how to enforce such laws. (slip op at 15-19).

Upholds Papers Please Provision, Though Notes Limits:

The downside of the Arizona decision is that the Court rejected a preemption challenge to Section 2(B) of SB 1070, which requires state and local police to make a “reasonable” attempt to determine the immigration status of any person who was stopped, detained, or arrested on some other legitimate basis if the police has a reasonable suspicion that the person is unlawfully present in the US.  This provision, in essence, allows state and local officials to hyper-vigilantly enforce certain laws (such as jaywalking or traffic infractions) in a discriminatory manner as a pretext to demand proof of immigration status from people of certain races or ethnicity.

The Court effectively ruled that it was premature to determine that Section 2(B) is preempted or otherwise invalid because that provision had not yet been interpreted by state courts. The Court did, however, strongly suggest that state courts needed to interpret the provision to prevent police from prolonging a detention simply to verify immigration status.  In addition, the Court implied that Section 2(B) could run into constitutional problems if it was shown that police are enforcing it in ways that target people because they are of a certain race or ethnicity.

Strongly Suggests Legality of Obama’s DREAMers Policy:

The Arizona proceeding did not, of course, involve President Obama’s recent policy regarding DREAMers – young, undocumented immigrants who were brought to the US as children by their parents, have been in the US for at least five years, and are law abiding and willing to attend college or serve in the military.  But portions of the decision suggest that the Court would plainly find the policy legal.

Conservatives have attacked President Obama’s DREAMers policy as an illegal exercise of Executive authority by deciding to not enforce immigration laws against DREAMers.  But as nearly 100 law professors have explained, the policy is a perfectly legal exercise of prosecutorial discretion, which allows a Presidential administration to decide the best ways to spend limited resources.  The Court echoed the validity of such exercise of discretion in the immigration context, explaining that:

Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials.  . . . .   Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the  community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.   (p. 4)

The Court made a similar point in explaining that allowing a state to have its own immigration laws could lead to “unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”  Such language suggests that the Court would be receptive to an argument that the decision not to pursue deportation against DREAMers is an appropriate exercise of prosecutorial discretion.

What It Means For Other States:

Five other states – Alabama, Georgia, Indiana, South Carolina, and Utah – have passed laws with provisions similar to at least some of the provisions in SB 1070.  The Constitutionality and validity of each of those laws is being challenged by the ACLU and others.  As the ACLU documents in this helpful infographic, portions of these laws have already been struck down by federal district or appellate courts.  The Arizona ruling bodes well for the ACLU getting those lower court rulings upheld during any appeal, and potentially striking down additional portions of those laws.

What Does Romney Think?:

Mitt Romney has been exceedingly vague regarding his views on the Supreme Court’s decision, failing to say whether he agreed with any or all portions of the decision in a statement released by the Romney campaign after the ruling was issued.   Similarly, a Romney campaign spokesperson dodged the question of the candidate’s view on the decision twenty times in an interview yesterday.

But Romney has made his views on this issue known numerous times in the past.  In particular, during the GOP primaries, Romney described SB 1070 as a “model” for the nation, and he selected as a campaign adviser Kris Kobach, the virulently anti-immigrant Attorney General of Kansas who developed the self-deportation (or, as the Court referred to it, “attrition through enforcement”) strategy of getting immigrants to “voluntarily” leave the US by making life difficult for them.  In the past, Romney has specifically noted his approval of the self-deportation strategy.

* * * * * * * * * *

While the continued validity of the papers please provision of SB 1070 is troublesome and requires continued judicial and political efforts to get all of SB 1070 reversed, the Obama Administration DOJ won a significant victory on Monday over Arizona’s anti-immigration policies.  Now it is up to all of us to make sure that in 2013 we have a President and Congress that will be able to enact a far more sensible and humane immigration reform policy than that being promoted by Mitt Romney and by conservatives in states such as Arizona.

(By Fay Paxton, cross-posted at The Pragmatic Pundit)

The Obama administration’s announcement that it will stop deporting some young undocumented immigrants has placed immigration at the forefront of the presidential campaign and candidate Romney in a bit of a stew.  Pundits suggest Romney must moderate his position on immigration, but what exactly is his position?

As Governor of Massachusetts, in 2006, Romney signed an agreement with the U.S. Immigration and Customs Enforcement (ICE) agency that would have permitted State Troopers to arrest and seek deportation of suspected illegal immigrants they encountered during the course of their normal duties.

A group of 30 special-trained troopers were to be deputized to enforce immigration matters; to make arrests on immigration charges, question and detain suspected illegal immigrants, charge them with a violation of immigration law and place them in removal proceedings.  Soon after signing the executive order, Romney left the governorship to run for President.  In his television ad he said, “As President, I’ll oppose amnesty, cut funding for sanctuary cities and secure our borders.”

The newly elected governor of Massachusetts, Deval Patrick, rescinded the agreement within his first week in office.

Romney, who had the harshest immigration policy of the Republican presidential candidates, has received endorsements from Arizona’s SB 1070’s authors and main supporters,  Russell Pearce, Kris Kobach and Jan Brewer. Two days before the Supreme Court was set to hear opening arguments about the controversial law, Romney held several fundraisers and a rally in Arizona, where he embraced and praised birther-extermist and anti-immigration enforcer, Sheriff Joe Arpaio.

From Huffington Post:

Joe Arpaio’s Office Arrests 6-Year-Old Suspected Undocumented Immigrant

Romney’s immigration adviser, Kris Kobach told CNN,  “He [Romney] stated very publicly that Arizona’s law should be a model for how the federal government enforces its immigration laws. And he’s correct there too.”

Romney’s “self-deportation” policy shares the same basic approach as Arizona’s SB-1070.

At the time of this writing, the Super Bowl has just started.  But here at Winning Progressive, we already know what our favorite Super Bowl commercial is.  It is an online commercial put together by the American Federation of State County and Municipal Employees (“AFSCME”) pushing back on the attack on workers being proposed by Gov. Jan Brewer (R-Arizona) and her Republican cronies.  The commercial intertwines footage of Gov. Brewer’s disastrous debate performance in the 2010 elections with an overview of how the GOP is attacking workers in the state.

As has been explained at Talking Points Memo, the GOP’s assault on labor in the state goes far beyond the anti-union legislation that was pushed by conservatives in Wisconsin.  In particular, the Arizona legislation would do four things:

The bills include a total ban on collective bargaining for Arizona’s public employees, including at the city and county levels.

. . . . .

Beyond a ban on collective bargaining, the bills would also prohibit state and local government workers from deducting money from their paychecks to pay union dues.

They would ban state and local governments from paying anyone to spend time doing union work, a practice known as “release time.”

And in another break from the Wisconsin model, the restrictions would affect every type of public union, including police and firefighters.

The Arizona anti-worker legislation is a joint effort of the American Legislation Exchange Committee (“ALEC”), the shadowy right wing group that writes much of the conservative legislation being promoted in state legislatures; the Goldwater Institute, a conservative think tank in Arizona, and Wisconsin Gov. Scott Walker.   By attacking the unions of police officers, firefighters, teachers, and other public employees, the legislation would strike yet another blow against some of the last remaining secure middle class jobs in Arizona, and is clearly part of a conservative effort to attack those jobs throughout the country.

The Arizona anti-worker legislation was introduced last Monday and pushed through a Senate committee in less than 48 hours, which means unions and their allies are scrambling to organize in opposition.  While the GOP controls the House, Senate, and Governor’s office in the state, organizing against this legislation is important both to try to stop it and to help prepare to defeat anti-worker Republicans in the 2012 elections in the state.  For example, just last November, the rabidly conservative State Senator Russell Pearce, who authored the anti-immigrant SB 1070, was recalled due to organized opposition to that legislation.

Here are some steps you can take to help protect the rights of working people in Arizona:

* sign AFSCME’s letter opposing the conservative attack on labor

* if you live in Arizona, write a letter to your local newspaper editor and contact your elected officials to tell them to oppose SB 1484, 1485, 1486, and 1487

* “Like” the Arizona AFL-CIO and Resist Arizona Anti Union Bills Facebook pages so that you can keep up to date with the organizing against this legislation.

(By NCrissie B)

Democrats won several important victories yesterday. From Mississippi to Maine, Ohio to Iowa, and Kentucky to Arizona, it was a good day to be Blue. (More)

Here are some of the highlights:

Mississippi voters reject “personhood amendment”

In Mississippi, voters rejected by a 57-43 margin a “personhood amendment” that would have declared life to begin at the moment of fertilization. As 60-80% of fertilized eggs do not implant and 25% of those that do are miscarried, the law could have targeted almost all sexually active women as criminals. It would also have banned the most common forms of birth control, and the most common in vitro fertilization practices.

Maine voters restore same day voter registration

Down Maine way, voters repealed a law passed this year that ended same-day voter registration. Republicans passed the law to “protect elections,” but there were no proven cases of vote fraud under the old law and Maine residents recognized it as yet another voter suppression tactic.

More Ohioans vote to repeal Kasich union-busting in 2011 than voted for Kasich in 2010

In an Ohio referendum widely regarded as a bellwether for progressive politics, over 2 million voters chose to repeal Gov. John Kasich’s union-busting Senate Bill 5. By comparison, fewer than 1.9 million voters chose Gov. Kasich in last year’s election. Unlike similar laws in Wisconsin and Michigan, the Ohio bill never took effect. A petition drive gathered over four times as many signatures as were needed to put a repeal measure on the ballot.

Democrat Steve Beshear easily reelected as Kentucky governor

In Kentucky, despite high unemployment, budget shortfalls, third-party attack ads, and Republican opponent David Williams’ religious smears, incumbent Governor Steve Beshear (D) cruised to a 20-point victory.

Mathis victory preserves Democratic control of Iowa state senate

In Iowa, Democrat Liz Mathis handily defeated Republican Cindy Golding, by a 56-44 margin, to win the state senate seat vacated when Swati Dandekar accepted Gov. Terry Branstad’s appointment to the Iowa Utilities Board. Democrats will retain a 26-24 advantage in the Iowa state senate.

Arizonans oust immigration bill author; Democrat wins Phoenix mayoral race

Arizona state senator Russell Pierce has been recalled. The author of the state’s draconian immigration law lost by a 53-45 margin to fellow Republican Jerry Lewis. Arizona congressman Raul Grijalva (D) said “With Sen. Russell Pearce’s defeat in this recall election, everyone who practices the politics of fear and division was put on notice,” and recall organizer Randy Parraz said he will now look toward unseating Maricopa County Sheriff Joe Arpaio. And Phoenix voters chose Democrat Greg Stanton by a 56-44 margin as their new mayor. The most delightful election quote of the day comes from Phoenix resident Llian Hood, who mailed in her vote for Stanton earlier this week:

You know what, I don’t know anything about (Stanton). I just know he’s a Democrat.

Thank you, Mrs. Hood.

And thank you to all the Democratic activists who gathered petition signatures, knocked on doors, made telephone calls, and donated to candidates … and most of all to the voters who participated in your state and local governments. To those whose candidates won, well-earned congratulations. To those whose candidates lost, your efforts were not wasted.

This is what democracy looks like.

(Crossposted from Blogistan Polytechnic Institute (BPICampus.com))

On Monday, the 5-4 activist conservative majority on the Supreme Court found yet another way to put our politics in the hands of the moneyed interests who bankroll the conservative movement and undermine progressive government by striking a significant blow to state clean election laws.  Take action now by writing a letter to your local newspaper editor opposing the sale of our democracy, and by supporting organizations listed below who are fighting to take the for sale sign down.

The Supreme Court ruling at issue, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, struck down a key portion of the Arizona Citizens Clean Elections Act.   Under such Clean Election Laws, which exist in Arizona, Maine, and some local jurisdictions, candidates for public office that show a basic level of support are able to obtain public funds for their campaigns if they agree to forgo private financing.  Such laws are designed to help preserve our democracy by ensuring that candidates are able to run for office without being beholden to wealthy interests.  Public financing also increases the responsiveness of elected officials to their constituents by allowing candidates to spend more time with voters rather than having to constantly be begging for money from the wealthy and corporate interests.

Unfortunately, those wealthy interests are often able to overwhelm  public financing systems, as the lump sum amount of public financing that candidates receive can be swamped by the truckloads of cash that privately-financed campaigns can raise.  Arizona sought to address that problem by providing additional matching funds to publicly financed candidates.  Under the Arizona matching fund system, if a privately financed candidate spent more than a certain amount, each publicly-financed candidates would receive 94% of that additional amount in matching funds, up to a specific total amount of public financing.  There was no cap in Arizona on the amount that a privately financed candidate can spend.

The Supreme Court ruling on Monday found Arizona’s matching fund system to violate the First Amendment of the U.S. Constitution, on the grounds that such a matching fund system places a substantial burden on the speech of privately financed candidates and the independent expenditure groups that support them.  While the Court’s ruling was not exactly surprising given the Court’s previous ruling in Citizens United and the questions that the conservative activist majority asked at oral argument, it was misguided.  For one thing, the decision was based on the conservative majority’s faulty conclusion that money equals speech that is entitled to First Amendment protection.  In addition, as Justice Elena Kagan explained in a well-written dissent, it is simply wrong to contend that the matching funds burden anyone’s speech given that they do not prevent any privately financed speech, matching funds are available to all candidates regardless of viewpoint, and such matching funds allow for more speech.

While the Court purported to uphold the ability of states to provide for public financing, the Court’s holding strikes a serious blow at the effectiveness of such systems by preventing states from ensuring that such system cannot simply be overwhelmed by candidates who are able to raise nearly endless amounts of money thanks to the Citizens United decision.  In short, the five conservative activists on the Court have taken another step towards stealing our democracy away from we the people.

In order to take our democracy back, we the people have to do three things:

1. Elect Presidents and Senators who will nominate and support Supreme Court Justices that understand that money is not speech, and that our democracy is not something that you should be able to simply buy.

2. Push for a Constitutional amendment that makes it clear that money in the electoral context is not speech. Such an amendment would ensure that campaign finance laws and public financing would be subjected only to the types of rational basis review that most legislation is subject to, rather than the type of heightened review that occurs due to the faulty belief that money is speech.  Congresswoman Donna Edwards proposed such an amendment in 2010.

3. Get involved in the political system, so that we can outweigh the impact of money. On election day, each of our votes are worth just as much as that of one of the Koch brothers or any of the other conservative sugar daddies. And during a campaign, strong grassroots organizing can be just as effective as the mindless attack ads that most campaigns rely on. But for this alternative approach to work, we all have to get involved.

In order to help take our democracy back, we’d urge all of our readers to:

* Write a letter to your local newspaper editor supporting publicly financed campaigns and rejecting the notion that money equals speech.

* Join and follow on Facebook the following organizations that are fighting to return our democracy to the people, rather than to just the wealthy and corporate elite:

Brennan Center for Social Justice – a public interest think tank and legal advocacy organization based at New York University that helps litigate many high profile cases regarding elections and campaign finance.  Their Facebook page is here.

League of Women Voters – a non-profit advocacy group that has worked since 1920 to improve our system of government.  Follow them on Facebook here.

Free Speech for People – an advocacy organization dedicated to returning corporations to their proper role as economic, rather than political, entities.  Like them on Facebook here.

Here is the video of the Tucson memorial service speech by President Obama:

The full text is available here.   A few excerpts that we found especially meaningful were:

You see, when a tragedy like this strikes, it is part of our nature to demand explanations –- to try and pose some order on the chaos and make sense out of that which seems senseless.  Already we’ve seen a national conversation commence, not only about the motivations behind these killings, but about everything from the merits of gun safety laws to the adequacy of our mental health system.  And much of this process, of debating what might be done to prevent such tragedies in the future, is an essential ingredient in our exercise of self-government.

But at a time when our discourse has become so sharply polarized -– at a time when we are far too eager to lay the blame for all that ails the world at the feet of those who happen to think differently than we do -– it’s important for us to pause for a moment and make sure that we’re talking with each other in a way that heals, not in a way that wounds. 

 . . . . . .

 Rather than pointing fingers or assigning blame, let’s use this occasion to expand our moral imaginations, to listen to each other more carefully, to sharpen our instincts for empathy and remind ourselves of all the ways that our hopes and dreams are bound together. 

. . . . . . .

We recognize our own mortality, and we are reminded that in the fleeting time we have on this Earth, what matters is not wealth, or status, or power, or fame -– but rather, how well we have loved — (applause)– and what small part we have played in making the lives of other people better.

. . . . . . .

The loss of these wonderful people should make every one of us strive to be better.  To be better in our private lives, to be better friends and neighbors and coworkers and parents.  And if, as has been discussed in recent days, their death helps usher in more civility in our public discourse, let us remember it is not because a simple lack of civility caused this tragedy — it did not — but rather because only a more civil and honest public discourse can help us face up to the challenges of our nation in a way that would make them proud.