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Arizona, Texas and healthcare reform

Dec. 18, 2011 at 3:30 AM   |   Comments

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WASHINGTON, Dec. 18 (UPI) -- The challenge to Arizona's stringent illegal alien law accepted by the U.S. Supreme Court last week is just the tip of the spear in the much larger battle over federalism, which pits the rights of the states against the steady concentration of federal power.

Two other high-profile cases accepted by the Supreme Court this term, the challenge to the U.S. healthcare reform law and the fight over redistricting in Texas, also fit squarely into the federalism paradigm.

In the Arizona case, the state seeks to take over the federal role of restricting illegal immigration, saying the central government has made a mess of it.

In the healthcare challenge, 26 states attack a federal law that makes profound and national changes in the healthcare system.

In the Texas case, the state Legislature is fighting to protect its redistricting plan favoring Republicans against a federal court that says the plan does not accommodate massive increases in the Hispanic population in violation of the federal Voting Rights Act. At stake are three out of four new seats in the U.S. House.

A decision in any of the three cases might shake up the status quo. Decisions in all three, especially if they go against the Obama administration and the federal government, might cause an earthquake in the relationship between the states and the central power.

While the ground quivers beneath the courts, most conservatives on the national stage show little interest.

The Atlantic magazine points out that in the last Republican debate, only two presidential candidates, U.S. Rep. Ron Paul and Gov. Rick Perry, both of Texas, showed they had given serious thought to the question of federalism.

Asked about an alternative to the Patriot Act, Paul said, "There's nothing in our Constitution that says violent acts should be a prerogative of our Constitution." He added Medicare, Medicaid and Social Security were all unconstitutional, but should be eliminated slowly.

The article pointed out Perry said "he's against a national 'right to work' law: we need 'to get the federal government out of making one size fit all even if it's for things that we think we would like.' What if a state continually fails to provide an education for its children? Should the federal government step in [?]: 'No ... . If you believe in the 10th Amendment and you believe that the people in that state are going to impact those legislators they will do that.'"

The 10th Amendment, part of the Bill of Rights, lays down the foundation of federalism: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Former House Speaker Newt Gingrich, the front-runner in the Republican race, took the opposite view. The author of The Atlantic article, Garrett Epps, a former Washington Post reporter who teaches constitutional law at the University of Baltimore, said Gingrich "clearly wants to do big things once he gets his hands on the levers of federal power. What, he was asked, about his proposal to empower local citizen boards to decide whether longtime undocumented residents of a community should be deported or allowed to remain? Why shouldn't the states be making that decision?

"Gingrich's answer ought to chill 'Tenthers' in the unseen audience," Epps reported in the article.

Gingrich said in response to the question, "The 10th Amendment actually talks about the states and the citizens."

Epps said the implication of Gingrich's reply "is, the federal government can reach over the head of the states and empower boards in cities and towns -- presumably made up of appointees by President Gingrich, not Governor Whoever -- to carry out important federal programs."

Former Massachusetts Gov. Mitt Romney had almost nothing to say about the states, Epps said.

As for the U.S. Supreme Court, the fact that the justices have agreed to take on the three high-profile cases is not a good sign for the administration. In each of the three cases, the side either espoused or supported by the administration had won.

Now those lower-court victories are in jeopardy.

In the Arizona case, the high court agreed to decide whether Arizona's tough illegal immigration law is pre-empted by federal law.

The Obama administration had challenged the state law, saying it usurped the role of the federal government. A federal judge agreed in part and issued an injunction against key parts of the law. A federal appeals court panel then decided the judge had the authority to issue the injunction.

The injunction bars enforcement of provisions of the law requiring police officers to question people about their immigration status during routine law enforcement operations, if officers have reason to suspect people are not in the United States legally.

The injunction also blocks a provision that criminalizes failure to apply for or carry alien registration papers, and a third that makes it illegal "for an unauthorized alien to solicit, apply for or perform work." Another blocked a provision that allowed police to arrest legal aliens thought to have committed a deportable act.

There is no question that Arizona has suffered from illegal immigration. Even U.S. District Judge Susan Bolton, who issued the injunction, conceded the state law was enacted against "a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes and serious public safety concerns."

Arizona also says it has spent more than $760 million to jail illegal immigrants.

But the federal government argues U.S. law trumps state law. The four provisions of the state law enjoined by the judge "do not represent an effort to cooperate with the federal government in enforcing federal immigration law; instead, they are designed to establish Arizona's own immigration policy, 'attrition through enforcement,' to supplant what the governor [Jan Brewer] called in her signing statement the federal government's 'misguided policy,'" the administration said in its own brief to the Supreme Court. "The court of appeals correctly held that the [federal Immigration and Nationality Act] precludes the state's effort to challenge federal policy rather than cooperate with federal officials in furthering it."

Besides requiring aliens to register when they enter the United States, "the INA prohibits employers from knowingly hiring or continuing to employ aliens who are not authorized to work in the United States ... and employers who violate that prohibition face a range of civil and criminal penalties. ... Federal law does not, however, impose criminal penalties on aliens who merely seek or obtain unauthorized employment in the United States."

How the Supreme Court decides the case, probably by June, will have as much a political effect as a legal effect. Ruling against the administration would be a blow to President Obama in the middle of a presidential election.

And most realize the high court has been dominated by a 5-4 conservative majority in recent terms.

Arizona officials, for their part, have been confident of a Supreme Court victory from the beginning. State Sen. Russell Pearce, who wrote the Arizona legislation, correctly predicted a decision would go against the state at the appeals court level.

"This is not a great [three-judge appeals] panel," KTAR.com reported Pearce as saying. "I guess it could have been worse, I'm not so sure ... but we'll win in the United States Supreme Court, in a 5-4 decision."

That favorable arithmetic has changed: It's become even more favorable for Arizona. Justice Elena Kagan, a liberal who might have been expected to support the administration, has withdrawn from the case because of her earlier work as U.S. solicitor general.

Now that high court conservative majority of 5-4, at least in the Arizona case, has become 5-3.

Outside the Arizona case, the U.S. Justice Department has filed suit against similar laws in South Carolina, Alabama and Utah. An Arizona win in the high court could evoke a rush of states seeking their own illegal immigration laws in defiance of the federal government.

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