We've been very careful in keeping score when it comes to decisions on the Affordable Care Act, but when it comes to the other big court battle of our time, the constitutionality of restrictive state immigration laws, judges have been unanimous in striking them down:
For the four federal judges who have temporarily blocked efforts of Georgia and three other states to begin apprehending illegal immigrants, it's also a matter of upholding the law, pure and simple.
The difference is, those four judges, in four courts, in four states, all invoked the principle that the federal government alone has the power to make immigration law, according to an Atlanta Journal-Constitution analysis.
That federal power includes not just writing the laws but determining how they will be enforced.
“The lower courts have been unanimous and emphatic in throwing out state enforcement schemes,” said Erwin Chemerinsky, a professor of constitutional and immigration law at the University of California at Irvine.
Why haven't we heard more about this? I think the expectation is that, as with health care, the only thing that really matters is what the Supreme Court has to say. The article cites Arizona State University law professor Paul Bender noting that the Supreme Court is "more conservative than the lower courts, and perhaps more sympathetic to states’ desire for an expanded role."
The best example of this is Chamber of Commerce v. Whiting, in which the Chamber sought to have struck down an Arizona law that compels state employers to use the federal E-Verify system, which immigration rights advocates argue isn't actually very effective. (According to a government evaluation of the program, "the inaccuracy rate for unauthorized workers is approximately 54 percent.")
The majority found in that case (a 5-3 decision because Justice Elena Kagan recused herself) that Congress had deliberately left space for the states to experiment with licensing schemes. That, in and of itself, may not bear on what the conservative majority thinks of the broad immigration laws that seek to make life as difficult and miserable as possible for undocumented immigrants, but during oral arguments some of the conservative justices seemed to have adopted the right-wing worldview on immigration, that the federal government has abdicated its role in this area and so the states are forced to compensate. Justice Antonin Scalia complained that "Perhaps Congress never expected that the States would have to resort to such massive measures, and they probably wouldn't have if the law had been uniformly enforced and vigorously enforced, right?"
Conservatives repeat this mantra endlessly, but spending on immigration enforcement has gone up sharply even as the population of undocumented immigrants has increased, leading to the perception that enforcement is somehow lax when the problem is that enforcement can only do so much on its own (the enforcement paradox). This perception may be wrongheaded, but it could augur good tidings for restrictive state immigration laws when they reach the high court.
