The Obama administration has solid policy reasons for challenging the new Arizona law that targets illegal immigrants. But the long-awaited Justice Department lawsuit, filed yesterday, may well be a political nightmare for several Arizona Democrats - as well as centrist Democratic incumbents elsewhere - who currently hold House seats and hope to keep them in November.
As expected, the lawsuit - which seeks to derail the hardline Arizona measure before it takes effect on July 29 - rightly declares that only the feds can set immigration policy. As the lawsuit points out, "Under our constitutional system, the federal government has preeminent authority to regulate immigration matters."
This is factually correct. The U.S. Constitution decrees that Congress has the power "to establish an uniform rule of Naturalization," and says elsewhere that the Constitution "shall be the Supreme Law of the Land," trumping state laws. And as I mentioned here a few months ago, the courts have long recognized the federal preeminence on immigration matters. A federal court threw out the mid-'90s California referendum that denied social services to illegal immigrants. The U.S. Supreme Court threw out a 1975 Texas law that had denied public education to the children of illegals. A federal court threw out a Hazelton, Pennsylvania law that had made it difficult for illegals to rent housing.
Moreover, the Obama administration wants to send a message to other states that might be contemplating similar laws; as the suit notes, the Constitution doesn't permit "a patchwork of state and local immigration policies" - particularly draconian measures that might trigger "the detention and harassment of authorized visitors, immigrants, and citizens." As Walter Dellinger, a former acting U.S. Solicitor General, remarked yesterday in an email to The New Republic, "whether suing is good politics or not (is) beside the point...In my view, the Justice Department had no choice but to bring this suit."
OK, that's the policy argument. It has merit. But Dellinger was right when he suggested that suing is bad politics.
The short-term problem for the Democrats is that the lawsuit itself is politically risky. The latest Washington Post-ABC News poll reports that 58 percent of Americans support the Arizona law - and, significantly, that 57 percent of independents think the states "should be allowed to make and enforce their own immigration laws." Independents have generally cooled toward Obama lately; their votes will be crucial this November, especially in swing districts now held by vulnerable Democrats.
In the '10 congressional elections, the battle for power in the House may hinge on a handful of swing seats. Several of the imperiled Democratic seats are in Arizona. Those incumbents are not particularly happy today, given the fact they they've been forced to make a choice: Defend the Obama lawsuit and risk ticking off their swing voters (who strongly support the Arizona law); or assail the lawsuit, throw Obama under the bus, and risk ticking off Hispanics and the liberals in their voting base.
Actually, they've already made the choice. Seeking to maximize their survival prospects this fall, they're speedily distancing themselves from the lawsuit, from Obama, from the national Democratic party, from the city of Washington, apparently from anything that would remind their voters that they actually hold office.
Case in point: Harry Mitchell, the centrist congressional Democrat who represents the district encompassing the suburbs east of Phoenix. It's a GOP-leaning district; voters backed George W. Bush (handily) in the '04 presidential race, and John McCain (narrowly) in the '08 race. Mitchell became a freshman thanks to the Democratic wave of 2006 and he was reelected two years later, albeit underwhelmingly. Here's some of what Mitchell said yesterday, regarding the lawsuit:
"This is the wrong direction to go...Arizona needs Washington to take action, but a lawsuit is definitely not the kind of action we need...The federal government has a responsibility to secure the border and fix our broken immigration system, but hasn't done so...Washington still doesn't get it...While the president acknowledged last week that Arizonans are justifiably fed up with inaction, filing a lawsuit is counterproductive...Arizonians are tired of the grandstanding. Political posturing on this issue has to end."
Colloquial translation: "Washington is the enemy. I have nothing to do with Washington, never heard of the place. Obama is the enemy. He's grandstanding and politically posturing. If he shows up in Arizona to campaign for me, I intend to have the flu that day."
One of Mitchell's Arizona Democratic colleagues, freshman Ann Kirkpatrick, released her own statement yesterday, saying in part: "This lawsuit is a sideshow, distracting us from the real task at hand...Washington failed us on this issue again today, and Arizonans have had enough. The White House and Congress need to start developing a better approach to border security and immigration reform, working with us instead of against us."
Mitchell and Kirkpatrick clearly hope that the swing voters back home will hear their "secure the border" message, because that's a visceral imperative. Yet they also hope that the Hispanic and liberal voters hear their message about the need for "reform," about fixing "the broken immigration system," because that can be interpreted as their desire for a path-to-citizenship policy...which, by the way, has no chance of being enacted this year or in any foreseeable year. Even George W. Bush tried to get that enacted (much to his credit), only to be thwarted by conservatives in his own party. Mitchell and Kirkpatrick have a free pass on calling for a comprehensive Washington solution, because they know darn well that nothing will be solved.
What a mess. In the absence of long-term coherent policy, there is only short-term political positioning. A Washington Democratic strategist told a reporter the other day that, on the immigration issue, vulnerable incumbents such as Mitchell and Kirkpatrick "need to work hard to address the needs and interests of their constituents."
Colloquial translation: "Vulnerable Democrats are on their own. If they need to trash Obama in order to save their skins, fine."
I'm just wondering. When a big-tent party has so many restive campers, is that a harbinger of trouble ahead?