Arizona On My Mind… Or, Immigration, Abortion, Gun Rights, Gun Violence, Birtherism, Religious Liberty, and Labor Union Controversies Concentrated in One State

I have a course curriculum in mind called Fractures in American Politics: Arizona 2010-2011. How does Arizona telescope so many national tensions at once, and in such interesting ways? Immigration, abortion, gun rights, gun violence, Birtherism, religious liberties, labor unions, even tax policy — Governor Jan Brewer just signed a business tax hike, backed by the business community for fear of potentially stiffer tax burdens without it.

It’s too easy to dismiss Arizona’s surge of national profile controversies as the cranky legislative gush of a very conservative state. Those who take this tack betray simplistic ideological “gotcha’ politics” at its worst — as MSNBC commentator Donnie Deutsch and Al Sharpton illustrated back on Martin Luther King Day, when they accused Arizona, utterly falsely, of refusing to recognize MLK Day, and bizarrely, questioning whether Arizona should secede from the union.

That facile dismissal of Arizona, because it is a conservative state, also gave rise at the beginning of 2011 to some truly shameful behavior in the teeth of a tragedy. On Saturday, January 8th, Jared Lee Loughner opened fire in Tucson, killing six, and wounding many others, including Rep. Gabrielle Giffords (D-Az). Tucson Sheriff Dupnik immediately blamed the toxic political environment in Arizona. Multiple Democrats denounced the fierce political atmosphere in Rep. Giffords’ district. Paul Krugman, the same day, linked the tragedy to Republicans, the Tea Party, and “scary” opposition to health care reform. The “odds are,” he wrote, “this was political,” and “violent acts are what happen when you create a climate of hate.” Yet he still writes for the New York Times.

Loughner, as it develops, wasn’t Republican, conservative, Tea Party, or even particularly political. We are a better nation, I believe, because we endured that toxic blame-game nonsense and learned some valuable lessons.

Something peculiarly conservative is going on in Arizona — but it’s not simple. Governor Brewer is no liberal — she signed and celebrated S.B. 1070, the controversial Arizona immigration law now winding its way toward the Supreme Court. She also signed late last month the strange but fascinating abortion law that criminalizes abortion when the decision is based upon the race or gender of the fetus or the parent.

Yet Governor Brewer has vetoed three bills recently that some might characterize as core red-meat conservative enactments:

  • Most recently, she vetoed H.B. 2177, the “Birther bill,” which would have required presidential (and other) candidates to prove their citizenship before appearing on Arizona ballots. On CNN, she ups the ante and says the Birther issue is leading America “down the path of destruction.” She also explains that vesting that much power in a potentially partisan state official “could lead to arbitrary or politically motivated decisions.”
  • The same day — though vastly overshadowed (and I shake my head in dismay) by the Birther veto — she vetoed S.B. 1467, a gun rights bill which would have permitted concealed weapons on college campuses. Her veto letter pointedly criticizes the bill for being “poorly written,” and creating potentially dangerous ambiguities (including the possibility of application to K-12 educational institutions).
  • A week earlier, she vetoed S.B. 1288, an absolute religious exemption bill, which would have affirmed the right to government appointment or government-controlled license without regard to religious belief — but would also have affirmed that a person’s exercise of religious belief cannot be unprofessional conduct and cannot be the basis of denying, suspending, or revoking a professional or occupational license. Her veto letter noted that the “bill could protect conduct that harms the public but cannot be readily addressed if a person claims that the conduct is based on religious beliefs.”

Now that is a remarkable — and admirable — veto record for a week. Arizona gives us, I believe, a most interesting glimpse into the fight for the soul of conservatism. Count me among Governor Brewer’s supporters.

The rush to convert partisan talking points into legislation — whether from the right or the left — demands a sober assessment from mature party elders, the people schooled in the mischief that happens when sound-bites are hastily written into law. Governor Brewer has proven herself one of those mature party elders.

With these three vetoes, Governor Brewer sends this critical message to conservatives: Birtherism is nonsense, get beyond it, expanding gun rights is laudable, but not with careless legislation that conservatives would come to regret, and religious liberty is a sacred American tradition, but not a juggernaut that protects any conduct in the name of religion. Conservatives need to get precisely that sober.

As Paul Krugman illustrated, liberals love the symbolic value of Arizona. The Obama administration has made a frankly shrewd sport of attacking Arizona, beginning with its decision to forego “post-racial” (whatever that might have meant in the early days of promise) immigration policy, and instead file a duplicative lawsuit against Arizona’s S.B. 1070, the immigration law that mirrored federal immigration law, and added state enforcement capabilities.

Not a syllable in S.B. 1070 enacted any provision that was inconsistent with, or not already part of, federal immigration law. Yet there were wild protests and organized boycotts of Arizona for — what? passing a state law fully consistent with federal law that essentially called the federal government to task for abject failure to enforce existing federal immigration law?

Governor Brewer rightly signed that bill, if only to highlight the federal government’s failure. A federal district court let S.B. 1070 stand, but enjoined its most controversial provisions, and the Ninth Circuit recently affirmed in a 2-1 decision (Judge Carlos Bea dissenting).

More recently, the National Labor Relations Board confirmed its intention to sue Arizona and South Dakota over constitutional amendments requiring secret ballots to establish a union. Back in January, when the NLRB first started saber-rattling about suing Arizona, South Dakota, South Carolina, and Utah over this issue, I cautioned that the NLRB position was probably technically correct.

Federal law probably does protect an employer’s theoretical — never-actually-exercised — right to recognize a union even in the absence of a secret ballot. But is this theoretical, never-actually-exercised right really worth a federal government lawsuit? And if so, why sue only Arizona and South Dakota?

The NLRB says it declines to sue South Carolina and Utah “to conserve limited federal and state agency resources and taxpayer funds.” NLRB spokeswoman Nancy Cleeland said the agency “doesn’t have enough staff to handle four lawsuits at the same time.”

Pure unadulterated nonsense. If conserving “limited” resources were truly a motivation, the federal government wouldn’t commence any lawsuits to enforce an abstract right that no one exercises. This is about handing Arizona a loss, because Arizona matters in the political calculation of 2012, and how conservatives are viewed nationwide.

That is what Arizona has bizarrely become, a microcosm of some conservative passions and a political target for some cynical liberals. Thankfully, Governor Brewer has stepped up to say, we’re not so simple.

Abortion, Race, and Arizona

Abortion has always been an excruciating issue for me. Not personally, thankfully, because (a) I’m male; and (b) I’ve never even faced the question whether a wife or a girlfriend or a close friend should do it. So it is excruciating in my head, not my heart and soul, as it often is for women confronting the real choice. But how to reconcile respect for life and destruction of a fetus?

When I was a college student 30 years ago editorializing at The Daily Texan twice a week, one of my submissions addressed abortion, and I credited pro-life and pro-choice camps with good points. Friends fairly ridiculed me for taking such a “brave” non-stance. But here I am now, still crediting pro-life and pro-choice camps with good points.

I end up, with some difficulty, pro-choice. My provisional take is this: a fetus is sufficiently human life to warrant respect, even agony over its fate, but life is not so sacred that it admits no exception to the taking of it. It is permissible to take human fetal life when the woman, upon whom that fetal life entirely depends, does not wish responsibility for that life.

There, I said it. It is a justification for abortion that fairly exposes its implications.

Liberty drives my notion. The question of “life,” and the sanctity properly given it, is a raging political and religious debate. There is no consensus in America on abortion equivalent to the consensus that murder, or even petty theft, is wrong. In such a political stalemate, the default belongs to the proponents of freedom from government dictate. People decide, according to their conscience, not government.

There, I said it. Controversy favors freedom and individual conscience. Controversy may also counsel more local decision-making and less centralized, federal control of the issue.

Enter the cutting-edge, much-in-the-news state of Arizona (of course!) to make the abortion controversy more cutting. On March 29th, Governor Brewer signed into law a first-in-the-nation bill that criminalizes abortion when the reason for the abortion is based upon the gender or race of the child or the parent of the child.

Republican proponents of the bill say statistics show that a high percentage of minority women are seeking abortions and that abortion clinics intentionally locate in minority areas.

First, let’s sweep away some potentially distracting tangents. Arizona Republicans enacted an anti-abortion bill, not primarily an anti-racism or anti-sexism bill. Let it also be acknowledged that disinterest in a white baby could encourage an abortion. But let it also be said that abortion opponents certainly demonstrate their commitment to the unborn with this kind of legislation, which willfully pits racism and sexism narratives against the unrestricted right of abortion.

Thanks to Roe v. Wade, Arizona can’t make abortion illegal. Many abortions will continue happening in Arizona. But a tiny percentage won’t — the ones expressly based upon the race or gender of the fetus (coupled with medical professionals willing to enforce the terms of this new law). And that means that, say, two or three African-American or Hispanic, possibly white, girls, or possibly boys, will grow up in Arizona who wouldn’t have.

Subject to a few procedural limitations, a pregnant woman has the right to choose whether to carry her fetus to term. In my personal opinion, she has that right whether or not her decision is based upon racist or sexist considerations. I suspect most pro-choice people would agree, even if it meant slightly fewer women and people of color.

But that hardly makes the issue less excruciating.

 

President Obama’s State of the Union Address, January 25, 2011

Our president delivered another fine address, and touched brilliantly on a few points, somewhat disingenuously on a few others. My reactions:

  • What initially struck me as gimmicky — Democrats and Republicans agreeing to sit together, rather than their usual separate camps, ended up working well as political theater, in my opinion. A Republican friend earlier this week opined that this ploy was cynically designed to blunt the optics of opposing party members declining to applaud overmuch, which, since most of the people attending were members of the opposing party, would have rendered “audience reaction” less than robust. I think it worked out a bit differently. There was a bit of Democratic and Republican solo cheering — but generally, the cheering occurred at genuinely bipartisan notes. Americans witnessed their elected officials being generally gracious toward one another — and that is a net positive concerning the American people’s perception of government.
  • The president appeared more conservative than expected — certainly more conservative than his administration has been conducted for the last two years. It’s very effective triangulation politics — the president rising above partisan divisions and repeatedly calling upon “Republicans and Democrats” to do the right thing — and typically with kind words to say about the agendas of both parties. That is the generous face of governance for the next year, and it may well get the president reelected in 2012.
  • “The debates have been contentious; we have fought fiercely for our beliefs. And that’s a good thing. That’s what a robust democracy demands. That’s what helps set us apart as a nation.” No, that’s not what sets us apart as a nation — and it trivializes the very greatness you, Mr. President, successfully celebrate later in your speech. The debates in every other Western nation, and most non-Western nations, are equally robust. Nothing about our robust debate in the 21st century “sets us apart” except the skepticism about government power. The only instance in which we might claim uniqueness in the global argument is sustained discomfort with government trying to solve too much.
  • On display, with Reagan’s ghost hovering conspicuously, was the theme of American exceptionalism. It was fascinating political theater. There seems to be no man prouder of our country, no man more convinced of its greatness, no man more confident that none of us would trade places with the citizens of any other country, than the president of the United States. “What we can do – what America does better than anyone – is spark the creativity and imagination of our people. We are the nation that put cars in driveways and computers in offices; the nation of Edison and the Wright brothers; of Google and Facebook. In America, innovation doesn’t just change our lives. It’s how we make a living.” And this: “Remember — for all the hits we’ve taken these last few years, for all the naysayers predicting our decline, America still has the largest, most prosperous economy in the world. No workers are more productive than ours. No country has more successful companies, or grants more patents to inventors and entrepreneurs. We are home to the world’s best colleges and universities, where more students come to study than any other place on Earth.”
  • Wow. And it’s the same man from whom we experienced that historic kick in the gut during his worldwide “apology tour” — the same man who began his administration as a juggernaut against the notion of “American exceptionalism.” It is interesting to query whether the citizens of all those other countries feel ever so slightly betrayed. Or perhaps they are simply muttering, he is saying what he must say to those Americans.
  • The president wants to tackle immigration reform. Good, it assuredly should be tackled, with emphasis on securing the borders and punishing employers who exploit illegal labor. But the president’s rhetorical bait was a bit disingenuous. Conspicuously, without actually naming the act, he lauded the Development, Education, and Relief for Alien Minors (DREAM) Act, which purports to legalize innocent children of illegal immigrants who are accomplished students or engaged in public service. If the subset were that small, the DREAM Act would and should pass Congress overwhelmingly. But it is not. The bill purports to begin with a small subset of very sympathetic illegal aliens — “kids,” the PR purpose  — and expands outward enormously to embrace literally millions of illegal immigrants, none of whom is a “kid,” potentially eligible for citizenship — and it halts any otherwise legitimate deportation simply based upon applying for DREAM eligibility. If Democrats would surrender the overreach of the bill and focus honestly upon the subset applauded by the president, then this side-note of immigration policy could and should become law. Meanwhile, there are massive illegal immigration issues to tackle. And given the president’s frankly disingenuous focus on this issue in his speech, I doubt we’ll see genuine bipartisanship coming from the White House. His administration’s mishandling of Arizona may be the textbook instance of how not to be post-racial and constructive on immigration policy.
  • On health care, the president tip-toed, with a shrewd nod toward President Clinton’s “mend it, don’t end it” approach to affirmative action. Here’s what I don’t get: “What I’m not willing to do is go back to the days when insurance companies could deny someone coverage because of a pre-existing condition.” Really? Popular line — but how do we pay for it without premiums skyrocketing? More importantly, how do you keep people from gaming the system and applying for insurance only when they have a pre-existing condition? Well, the universal mandate. Everyone must purchase health insurance. On this issue of current constitutional significance, the president could have been a bit less glib.
  • But here’s something I never thought I’d hear from a Democrat: “medical malpractice reform.” Wow. If the president is serious about controlling health care costs, then tort reform is indeed essential — but it means willingness to take on one of the richest components of his base, the trial lawyers, right behind the unions. I guess I’ll believe it when I see it. But his willingness to put himself out there and say it at least puts the issue in play — even if his true intention is to ensure that any meaningful tort reform gets defeated or stalled in the Senate. Let’s see.
  • Another wow. “I will veto it,” this time referring to any bill with earmarks — the president’s slam against “special interests” inserting their pet projects into legislation. God bless President Obama. Sounds a bit like Bush senior’s “Read my lips, no new taxes” pledge. Let’s see.
  • Yes, Mr. President, “American Muslims are a part of our American family.” Did you really need to say that as though the rest of us didn’t quite get it yet? Just so you know, we do.
  • “And tonight, let us be clear: the United States of America stands with the people of Tunisia, and supports the democratic aspirations of all people.” Really? Like how we supported the democratic aspirations of the Iranian people? Do we support the democratic aspirations “of all people” only when they win by themselves? What’s the policy?
  • On the issue of the “Don’t-Ask-Don’t-Tell” policy imposed upon the military by Congress during the Clinton administration, the president appropriately applauded its repeal, and then equally appropriately called “on all of our college campuses to open their doors to our military recruiters and the ROTC. It is time to leave behind the divisive battles of the past. It is time to move forward as one nation.” That is sound on both scores and the president deserved the applause.

Our president spoke generally well. He was inclusive and at times quite generous. I applaud the speech, with only the reservations he would expect.

MSNBC Uses MLK Day to Slander Arizona

Yesterday I commented on the NLRB’s threat to sue Arizona, and wondered what it is about Arizona that seems to concentrate so many of our national political tensions. That was Martin Luther King Day, and one MSNBC commentator seized the solemn occasion to slander the State of Arizona.

Donnie Deutsch, responding to Al Sharpton’s comments on gun control and gangsta culture, said, “we’re in the year 2011, we’re coming off the horrific horrific event in Tucson, yet as we celebrate Dr. King’s Day, there’s still this very strange state, Arizona, that does not recognize it. Maybe is it time for a shift here? Should they secede from the nation? With all that’s going on, it’s just almost bizarre at this point.” (To which Al Sharpton, one of our national paragons of reconciliation, responded, “well, I think on today, I think they have seceded.”)

This is a fat fail on so many levels.

First, and most embarrassingly for Deutsch and Sharpton, they’re simply wrong. Arizona recognizes Martin Luther King Day, as a paid state holiday, and has since 1992, when voters approved a resolution enacted by the Arizona legislature in 1991. More on that history in a moment.

Second, it’s obvious from the clip that Deutsch wasn’t responding to anything Al Sharpton had just said. He simply wanted to make a frankly sleazy point as soon as he had an opportunity to make it. Call it red vegetables for liberals. He had his incendiary sound bite in his head, and that’s all that mattered to him. And that is sad. Most especially on Martin Luther King Day.

Third, “secede”? Really? You make a false and slanderous point about the State of Arizona, and then suggest the preposterous notion of secession? That’s taking hateful politics a step further. That tells me that, indeed, Arizona has acquired a metaphorical status in our political dialogue, that attacking Arizona has become, for some liberal commentators, a cheap route for self-adoring gotcha’ punditry.

Fourth, this is brazen race-baiting — that thing that isn’t supposed to exist, much less enjoy a national spotlight, in our post-racial America. I won’t speculate about whether Deutsch knew he was speaking falsely. If he didn’t, he was mind-bogglingly ignorant, and surely MSNBC can do better. If he did, he was contemptibly cynical. I won’t make that call. Either way, though, using Martin Luther King Day to attack Arizona for allegedly not recognizing Martin Luther King Day, and asking whether maybe they should secede from the union — because, presumably, they’re too backward and racist to be part of America — is just vile race-baiting, a trope with which Al Sharpton is familiar.

It’s a mystery to me where Deutsch got his incendiary false factoid, unless he just made it up. But there is a complicated history — there is always a complicated history — to Arizona’s relationship with Martin Luther King Day. Let’s break it down now.

Representative John Conyers (D-Michigan) pressed for a federal holiday honoring Martin Luther King for many years after Dr. King’s death. There was resistance to the creation of yet another federal holiday, for reasons of cost and vile condemnation of King. Jesse Helms strenuously objected in the Senate, citing King’s alleged Communist links and sexual dalliances. That was disgusting. But the campaign finally succeeded, and in 1983 President Reagan signed the bill establishing the third Monday of every January as the Martin Luther King, Jr. National Holiday for federal employees (Public Law 98-144).

States, enjoying a few attributes of sovereignty, are not compelled to recognize federal holidays. Some states recognized MLK Day sooner than the federal government. others later (Illinois was the first in 1973, New Hampshire was the last in 1999). Eventually, all states did so, to our national credit.

Arizona got in the act relatively early. In 1986, a bill to create a Dr. Martin Luther King, Jr. holiday and combine the state holidays for Washington and Lincoln into a Presidents’ Day was defeated by a single vote in the Arizona House of Representatives.

Nine days later, Arizona Governor Bruce Babbitt opted for executive fiat. He signed Executive Order 86-5, designating “the third Monday of each January as a holiday honoring the birthday of Dr. Martin Luther King, Jr. for all employees of Agencies, Boards and Commissions within the purview of the Executive Branch of the State of Arizona.”

Arizona thus was an early adopter of Martin Luther King Day.

But there was a separation of powers problem — and if that sounds familiar, it just gets better.

Two weeks later, Arizona’s Attorney General issued Opinion 86-032 (R86-071) concluding that “the Governor has no constitutional or statutory authority to declare a legal holiday that would be observed by closing state offices and giving state employees a paid day off.”

On January 12, 1987, Arizona’s in-coming Republican governor, Evan Mecham, making true on one of his campaign promises, signed Executive Order 87-3, rescinding Governor Babbitt’s Executive Order 86-5, “since authority to declare state holidays lies with the Legislature and not with the Governor.”

On June 18, 1987, Governor Mecham issued a proclamation declaring “the third Sunday in January, commencing in 1988 and every year thereafter to be Martin Luther King, Jr. – Civil Rights Day in the State of Arizona.”  In other words, the State of Arizona recognized and honored MLK Day, but not as a paid state holiday.

After several narrowly failed attempts to create an MLK Day (i.e., a paid state holiday) in the Arizona legislature, that body finally succeeded, on September 21, 1989, in creating a paid Dr. Martin Luther King, Jr. holiday and eliminating Columbus Day as a paid holiday.

So, wow, Arizona created MLK Day as a paid state holiday, and eliminated Columbus Day as a paid holiday — and liberals really hate Columbus Day. What an amazing achievement for the progressive state of Arizona.

But the plot thickens in such an American way. Italian-Americans were outraged. Cancel Columbus Day? Are you kidding? Tempe architect Julian Sanders and Italian-American groups launched a successful petition to force the MLK/Columbus Day issue to a state ballot.

In November 1990, Arizona voters, perhaps weary of politicized racial politics and wishing simply that state workers work, pretty much rejected everything, by narrow margins. They said no to Proposition 301 which would have established the third Monday in January as Martin Luther King, Jr./Civil Rights Day, a paid holiday for state employees and would have made Columbus Day an unpaid observance on the second Sunday in October. And they said no to Proposition 302 which would have established the third Monday in January as Martin Luther King, Jr./Civil Rights Day, a paid holiday for state employees and retained Columbus Day as a paid holiday on the second Monday of October.

By now, the “Arizona boycott” was on. Sounding familiar? With a vengeance. The Dallas Cowboys whacked the Buffalo Bills, 52-17, in Super Bowl XXVII on January 31, 1993. They would have done so in Tempe, Arizona — the intended site of Super Bowl XXVII — but the NFL balked and opted to take Super Bowl XXVII to California because of Arizona’s MLK stance.

The Cowboys came to Super Bowl XXX in January 1996, and beat the Pittsburg Steelers 27-17 — in Sun Devil Stadium in Tempe, Arizona — because Arizona had redeemed itself, and passed legislation creating Martin Luther King Day as a paid state holiday.

History is always tricky.

Personal note: there is no orator and statesman in American history that moves me more than Martin Luther King, Jr. I spent MLK Day listening to some of his speeches, and being slammed in the gut by his eloquence. He shouldn’t have had to argue what he argued so late. It should have been obvious. He spoke the self-evident truth. He dreamed so beautifully what should already have been reality. God bless Martin Luther King, Jr., and his memory.

 

Conservatives, Don’t Take the NLRB Bait

George McGovern ran against Richard Nixon in 1972, and virtually every county in America voted for Nixon. McGovern had been successfully pinned as an out-there liberal. Lyndon Johnson had done exactly the same thing to Barry Goldwater, in reverse, in 1964, and won by a record landslide, only eclipsed by Nixon’s defeat of McGovern. God bless McGovern and Goldwater, the former resolutely liberal, the latter resolutely conservative. And God bless the American people’s steadfast moderation.

McGovern stayed in politics for a while, but ultimately lost his reelection bid in 1980 during what would become known as the “Reagan Revolution.” He tilted to teaching, lecturing, and think tank activity. In 1988, he started a private business, which taught him something every politician should know. He later wrote, “I … wish that during the years I was in public office I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender.”

That’s backdrop for last Friday’s announcement by the National Labor Relations Board, threatening to sue Arizona, South Carolina, South Dakota and Utah over state constitutional amendments guaranteeing workers the right to a secret ballot in union elections. Yes, the federal government is threatening to sue Arizona, again. (Is Arizona bizarrely the cauldron of all that divides us?)

But this one, I think, is a ruse. The four target states have adopted constitutional amendments guaranteeing secret ballots in union elections. On its face, that is a salutary thing. Any decision to unionize should be made by secret ballot. The high-profile union drive to promote coercive “card-check” and bypass secret balloting, via the odious and misnamed Employee Free Choice Act, deserves every bit of opposition conservatives, moderates, and some liberals can muster. The union overreaching on this issue is abhorrent. George McGovern, having finally been a small-businessman, agrees, as to both the card check and compulsory arbitration provisions. “I’ve always been a champion of labor unions,” McGovern says — but EFCA is way too much.

But hang on. The latest NLRB ploy is not about enacting the Employee Free Choice Act via regulation — a specter many have rightly deplored, given the President’s appointments to the NLRB. The NLRB is doing something less deplorable here — and probably hoping reaction to it will hand them an easy victory.

The NLRB is simply saying that a state guarantee of a secret ballot conflicts with federal law because federal law permits a private employer to recognize a union, if the employer wishes, without a secret ballot. In other words, the state constitutional amendments at issue arguably take away a hypothetical employer’s right to recognize a union without balloting.

I know, what employer would be that stupid? But federal law enshrines the right. And if the NLRB is correct that the state constitutional amendments forbid the right, then the state constitutional amendments are likely preempted by federal law.

Federal law preempts any state law in conflict with it, including provisions in state constitutions.  The United States Constitution, Article VI, clause 2, states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So there’s no defending state laws or constitutional provisions Contrary to federal law. And federal law does clearly provide a private employer with the right to recognize a union without secret balloting.

It might be argued that the state constitutional provisions at issue aren’t even triggered in the event the employer simply recognizes a union without a secret ballot. But I wouldn’t take that argument to the bank. More likely, the constitutional amendments technically run afoul of federal law, and the NLRB hopes to score quick and easy victories on that basis, and tout those victories with its labor union base, which contributes millions to Democratic party campaigns.

And beating Arizona wouldn’t be bad PR for this administration either.

UPDATE (April 26, 2011): NLRB announces that it will proceed with lawsuits against Arizona and South Dakota. Oddly, the NLRB website linked in my original post has taken down all mention of the threat to sue the four states. But here it was.

Rush Limbaugh Joins Paul Krugman Beyond the Pale

I said in my last post that Paul Krugman’s despicable nastiness about the Tucson tragedy (about which he exhibits not the slightest shame, and indeed, in his latest column, goes even further in blaming Republicans) would likely have the opposite effect he intended — it would disgust most Americans and make them less inclined to view the tragedy as political.  That has happened to an extent.

I also said, with a kind of plague on both your houses shrillness, that conservatives might do the same thing if the dynamic were reversed.  That, too, has happened to an extent.  Such has been the intensity of the pushback against the Krugman contemptibility that some conservatives  have felt a misdirected liberty to tar Democrats.  I said I’d condemn it if I saw it, and I’m obliged to be true to my word.

From Ben Smith at Politico, quoting Rush Limbaugh:

“What Mr. Loughner knows is that he has the full support of a major political party in this country. He’s sitting there in jail. He knows what’s going on, he knows that…the Democrat party is attempting to find anybody but him to blame. He knows if he plays his cards right, he’s just a victim. He’s the latest in a never-ending parade of victims brought about by the unfairness of America…That smiling mug shot — this guy clearly understands he’s getting all the attention and he understands he’s got a political party doing everything it can, plus a local sheriff doing everything that they can to make sure he’s not convicted of murder – but something lesser.”

That, like Krugman’s nonsense, is disgusting.

No Democrats and no liberals I know are rushing to defend the shooter.  Democrats and liberals may be less inclined than me to call this a capital crime, warranting execution — but they’re not even close to defending what he did or trying to find technicalities or excuses to exculpate his horrible crime.  Mr. Limbaugh went beyond the pale as well.

The mistake of some liberals, in my opinion, was looking for additional people and ideas to blame — but they never sought to minimize the horror of what Loughner did.

I try never to wish ill of anyone — but it might be interesting political sociology to lock Paul Krugman and Rush Limbaugh in a vault, and, you know, watch for a few months…

UPDATE: And Bernie Sanders goes into the vault…

Tragedy in Tucson

A lone shooter in Tucson, Arizona killed Judge John Roll, 63; Dorthy Murray, 76; Dorwin Stoddard, 76; Christina Greene, 9; Phyllis Scheck, 79; and Gabriel Zimmerman, 30.  Several more were seriously injured.

Judge Roll began as a bailiff in the courts and worked his way to the bench.  He was appointed by President Bush Senior.  Gabriel Zimmerman, engaged to be married, was the director of community outreach for Democratic Representative Gabrielle Giffords — herself shot in the head and in critical condition.  Dorwin Stoddard was a pastor at Mountain Avenue Church of Christ.  Christina Greene was a student at Mesa Verde Elementary and had just been elected to the student council.

There are no words that make sense of such massive loss.

But there are words that distort and exploit that loss.  Paul Krugman in the New York Times as quickly as it is possible to post one’s notions: “We don’t have proof yet that this was political, but the odds are that it was.”  Krugman, ignoring the six dead, then noted that Representative Giffords was opposed by the Tea Party, and that opposition to health care reform was like “the climate that preceded the Oklahoma City bombing.”

That is so disgusting and beyond the pale that it will likely have the opposite effect that Krugman would wish, which couldn’t happen to a nastier guy.  Krugman’s unseemly eagerness to pin horrible tragedy on political opponents is precisely the cynicism that gave rise to the Tea Party.  The liberal surge of finger-pointing and condemnation is the most morbid and repugnant evidence of cultural decay in the 21st century.

And had it happened the other way around — had high-profile conservatives been shot — I can fairly surmise that conservatives would have pointed to incendiary leftist rhetoric and demonized liberals, and I would then say, as well, it’s the most morbid and repugnant evidence of cultural decay in the 21st century.

There is a diabolical determination among liberals and conservatives (I am neither, consistently) to stay exactly what they are, demonize the other, and hear only what reinforces the foregoing.  I am sick of it.  I am sick of the cheap political scoring.  I am sick of the common impulse to say horrible things about other human beings simply because they are the politically abstract other.  I am sick of fighting against pathological hatred of hate.  I am sick of liberals and conservatives only reading the cheerleading liberal and conservative confirmations of their biases.  And I am really sick of the self-satisfaction of anger-mongers and righteous haters.

Anyone who has spent ten minutes in the public policy arena knows that no political development matters a fraction compared to our human connections and the things that bind us.  When we look back at our lives from the final perch, it never matters that Obama or Nixon or Roosevelt got elected.  It matters that our connections to human beings were real, that we loved well, that we were loved for good reasons, and that there was some laughter and good will.

So what do we do with the slaughter in Arizona?

Let’s start with the obvious.  We make a moral judgment.  He is disgusting.  Not because of his politics, whatever they may be, but because of his actions.  What he did is disgusting, and we can call it that because we all agree there are lines that cannot be crossed.  At a fundamental level, it does not matter what motivated him, what happened to him in his childhood, what growing-up nastiness his defense lawyer will dredge up — he murdered people.  So I don’t care a whit about what conjured horrors brought him to this place.  He murdered people.  Nothing in his background hasn’t happened to hundreds of thousands of people who didn’t murder people.  So no sympathy.

Now the trickier question.  Who else is responsible?  Should we look to a “climate of hate” so that we can pin this murderer’s actions on someone else?  Are conservatives “in denial,” as a Facebook post asserted, if they don’t take responsibility for this slaughter?

“Denial” is the province of the demonizers.  And the rush to blame political opponents for tragedy is revealing.  A lone lunatic — with no known connection to any political party or movement — opened fire in Arizona.  Among his favorite books were Hitler’s Mein Kampf and The Communist Manifesto – interestingly, from the right and the left, tomes focused on power and single-minded formulas, the natural obsessions of a deranged mind.  What has emerged from his internet presence indicates a deeply deranged mind.

And speaking of obsessions, has the bizarre hatred of Sarah Palin finally scored?  Did her use of some martial metaphors like “lock and load” and “targeting” push the repugnant lad over the edge and cause murder?  Was she arguably responsible for a climate of hate that caused violence when she said, “if they bring a knife to the fight, we bring a gun”?

Oh wait, that wasn’t Sarah, that was Barack Obama in Philadelphia during the 2008 campaign.  But he was just funning, being literate, using a ha-ha metaphor.  Democrats don’t mean it, but Republicans, being invariably literal rather than literate, always mean, no really, “lock and load” and shoot to kill.

And Sarah certainly welcomed actual death with her chart — all the rage on the internet — “targeting” certain congressional districts with “bull’s-eyes” (i.e., the things that guns, or more specifically, rifles, shoot at).  Again, Democrats did exactly the same thing, using “bull’s-eyes” for “targeted” districts — but they were just funning, using a metaphor.

I’m no apologist for Sarah Palin, or Republicans, or conservatives, or the Tea Party — I just get sick of the double standard.  Liberals scold anyone who suggests murders by Muslims might be inspired by murderous Islamist ideology — let’s get the facts first (and that’s good) — but evidently take less interest in getting the facts first if conservatives can get right properly tarred with murder.

That is a sickness in our politics.

There is a myth nurtured by the left that its disgusting fringe is less disgusting than the right’s disgusting fringe.  No.  Both fringes are equally disgusting — except that left-wingnuts enjoy a lot more play and forgiveness than right-wingnuts.  Nearly all Americans have no sympathy for either — which is exactly why the effort to pin mainstream conservatives or liberals with wingnut abomination is doomed.

One sick f*ck shot people in Tucson.  Bring him to justice, without hysteria, and try not to burn hordes of “witches” in the process.

 

UPDATE 1-15-2011: Former Carter pollster Pat Caddell calls Krugman an “asshole.” Not a fan of the name-calling, but Krugman did crawl into a lower intestinal space.

Writing the Obituary of Human Rights

If hyper-inflation applied to political philosophy, “human rights,” like Deutsch Marks in the early Weimar Republic, would be piled into wheelbarrows by the billions for a loaf of bread.  The latest profligate printing of “human rights” currency is the Obama administration’s American self-assessment submitted to the UN Council on Human Rights.

A brief digression.  The UN Council on Human Rights is the successor organization to the UN Commission on Human Rights (UNCHR).  In 2003, America openly fought against Libya’s chairmanship of UNCHR.  That was when actual “human rights” still mattered.

In 2004, the US ambassador walked out of the UNCHR, after the admission of Sudan, which was then busy with genocide — systematic slaughter of actual human beings — in Darfur.  With that gesture, the United States honored actual “human rights,” the rights that belong to flesh-and-blood human beings suffering actual torments.  In 2004, the United States could still speak of “human rights” concretely.  The United States could still dignify the concept with reference to real people.

The UNCHR had no credibility as an actual human rights organization.  It was dissolved.  We did not join the UNCHR’s replacement in 2006, the new U.N. Council on Human Rights, because the credibility of actual “human rights” still mattered.  But last year, the Obama administration joined.  Is the successor organization more credible?  Noah Pollak writes:

The Council remains as it ever was: a body composed of some of the worst human rights abusers in the world, devoted to attacking Western democracies, demonizing Israel, covering up the abuses of authoritarian regimes, and undermining the pursuit of human rights. The only difference today is that America’s name is being lent to this effort.

Pollak cites an example:  “When the Syrian representative claimed that Israeli children ‘sing merrily as they go to school,’ and I quote, ‘With my teeth I will rip your flesh. With my mouth I will suck your blood,’ the U.S. representative made no protest.”  This is the dialogue we dignify and that American tax dollars subsidize.

And now we have officially assessed ourselves, as required by the protocols of the U.N. Council on Human Rights.  And we have said to the international community: President Obama has been a paragon of human rights promotion.  In every area — race, gender, sexual orientation, age, disability, labor, home ownership, Native American rights — President Obama has acted nobly.

(On religion, the only mention of human rights solicitude is on behalf of Muslims, though FBI Hate Crime statistics show the following about the 1,732 hate crimes in 2008, the last year for which figures are available — hate crimes against Muslims: 7.5%; hate crimes against Christians, combining Catholics and Protestants: 8.7%; hate crimes against Jews: 66.1%.)

As against the very real horrors of human rights violations around the globe, our American “report” on human rights reads like a crass celebration of Democratic Party talking points:

  • “Currently there are several bills in our Congress that seek to strengthen workers’ rights—ensuring that workers can continue to associate freely, organize, and practice collective bargaining as the U.S. economy continues to change.”

That would be the “Employee Free Choice Act” — a measure that would permit unions to blindside management and workers by securing on postcards, by whatever means, a majority vote for a union without any opportunity for the employer to state a case.  So, to counter the fact that unions lost more than 4,000 government-supervised elections over the last several years, it is a “human right” to form a union secretly, whether or not workers actually want it.

  • “The Department recently obtained consent decrees against some jurisdictions and concluded a settlement with another, and it is preparing to review thousands of redistricting plans that will be submitted after release of the 2010 Census results to ensure that voting districts are not drawn with the purpose or effect of marginalizing minority voters.”

Really?  Minority voters have suffered, or might suffer?  I’d have thought the administration might be circumspect about the integrity of American elections, since we are still dealing with massive voter fraud that the current DOJ doesn’t wish to address.  The administration tells the world that the only election integrity issue left in America is “marginalizing minority voters.”  That’s manifestly false — and assuredly not a human rights issue.

  • “We are not satisfied with a situation where the unemployment rate for African Americans is 15.8%, for Hispanics 12.4%, and for whites 8.8%, as it was in February 2010. We are not satisfied that a person with disabilities is only one fourth as likely to be employed as a person without disabilities. We are not satisfied when fewer than half of African-American and Hispanic families own homes while three quarters of white families do. We are not satisfied that whites are twice as likely as Native Americans to have a college degree. The United States continues to address such disparities by working to ensure that equal opportunity is not only guaranteed in law but experienced in fact by all Americans.”

Really?  As against horrific brutality elsewhere, home ownership rates in America are human rights issues?  With what are we truly dissatisfied?  Must the gap be zero to achieve true “human rights”?  Did the foregoing paragraph say anything whatever about genuine “human rights”?

“Human rights” in this narrative have nothing to do with equal opportunity, and everything to do with equal results.  The Report tells us that DOJ and EEOC have “reinvigorated efforts” to enforce civil rights laws, and that DOJ is particularly concerned to enforce “disparate impact” regulations:

I urge you to remember that the federal agencies serve an especially critical role in enforcing the Title VI disparate impact regulations. This is because the Supreme Court has held that victims of disparate impact discrimination have no private right of action to enforce these regulations. Alexander v. Sandoval, 121 S. Ct. 1511 (2001). Victims can only turn to the administrative complaint process and, therefore, agencies must be particularly vigilant in ensuring strong enforcement in this area.

In sum, disparate impact — mere difference in numbers between whites and minorities — gives rise to neither legal nor constitutional right, much less any “human right.”  Yet our report to the world on “human rights” signals our determination to ferret out and fight any “victim of disparate impact.”  This is a trivialization of human rights.

On home ownership in particular, our “human rights” report is absurd.  “We are not satisfied when fewer than half of African-American and Hispanic families own homes while three quarters of white families do.”  And then: “Following the recent economic crisis, the issue of predatory lending, and particularly discriminatory lending, is an area of enforcement focus. The recession in the United States was fueled largely by a housing crisis, which coincided with some discriminatory lending practices. The subsequent foreclosure crisis has disproportionately affected communities of color.”

So the federal government, and its surrogates Fannie Mae and Freddie Mac, zealously propelled minority mortgages in the interest of closing that home ownership “human rights” gap — and then when the bubble burst, the “disproportionate impact” on “communities of color” is also a “human rights” issue, and “the federal government has focused resources and efforts to determine whether and where discrimination took place.”

Stupid.  And I emphasize stupid because whatever your take on the subprime mortgage crisis, its characterization in America’s “human rights” report to the international community  as a “human rights” issue is indisputably stupid.

  • “A recent Arizona law, S.B. 1070, has generated significant attention and debate at home and around the world. The issue is being addressed in a court action that argues that the federal government has the authority to set and enforce immigration law. That action is ongoing; parts of the law are currently enjoined.”

Really?  By fully democratic processes, Arizona enacts an overwhelmingly popular — inside and outside Arizona — immigration law, and yet the administration considers it a “human rights” concern reportable to the United Nations?  Even if S.B. 1070 were remotely a human rights concern — and it is not — reporting a state law that merely adds state manpower to federal law, to the United Nations as a “human rights” issue is sophomoric.

The administration’s sanctimony about its domestic “human rights” agenda might be bearable if it had actively promoted actual human rights anywhere else on the globe.  But, to the great sadness of human rights activists, the President has been steadfastly silent about Iran, about Burma, about Zimbabwe, about Congo, and about Sudan — all golden opportunities to recognize actual human beings suffering actual torments, and thus to give critical content to “human rights.”

The phrase means nothing of consequence now.  Similarly, therefore, our report to the United Nations.

While we’re on this popular subject of hate…

Part of the problem is the hatred of hate.  Too many people hate hate, see it too frequently, and plunge into their own protracted virulent hatred of “hate” and alleged “hatemongers.”

I have felt hatred at times in my life.  I’ve never hated my hatred – just found it impossible to sustain beyond a brief indulgence.  And I’ve never hated anyone else’s hate – just found it perplexing.  Actual hatred is an emotional black hole.  I honestly don’t know how people perpetuate it without growing tumors the size of baseballs.  In fact, I suspect that actual protracted hate might be physiologically impossible, or at least very rare.  What instead occurs might be a kind of tepid surrogate “hate” that secures an important psychic benefit: the definition of oneself in opposition to the hated abstract “other.”

It’s not really “hate” so much as a kind of comforting pseudo-hatred that has much more to do with negative-self-mythology (what I am absolutely categorically not) than with any actual external reality of the hated object.

Sadly, of course, hate – and hating hate – suffocates inquiry.  The paramount project for the hater and the hater of hate is self-definition.  I am so not this hateful other. The psychic benefit thus secured, any further exploration actually threatens the paramount project.  Exploring the real-world nuance and ambiguity of the object of hatred undermines the comfortable self-definition in opposition to the object of hatred.

For example, the person who hates the “racists” who oppose the mosque near Ground Zero is typically refusing any actual inquiry into the nuanced dialogue concerning the proposed mosque.  The paramount project is the hater’s reinforcement of his or her self-image as a zealous opponent of “racism.”  If any particular object of that hatred were not in fact racist, then the hater of hate loses a psychic benefit, surrenders a comforting source of his or her negative self-mythology.  “They must be racists” – not really because any inquiry has occurred that would warrant that conclusion objectively, but because “I need them to be racists for me to feel energized by my righteous opposition to racism.”

Consider this disturbing exchange at a protest of the mosque near Ground Zero, where an enraged man repeatedly cursed and insulted an 82-year-old Holocaust survivor – including this unconscionable “explanation” of his rant after the fact: “he obviously didn’t learn his lesson … because right now he wants to do the same g–d— f— thing to the Moslems that had to happen to him.”

Watch the video.  Quite apart from the merits of the spirited debate about the proposed mosque near Ground Zero, we can agree that hatred, including quite vile and irrational hatred, is not the exclusive province of the right or opponents of the mosque.

My recent focus on leftist hatred, on the cynical rush to characterize mosque opponents (or proponents of the Arizona immigration law) as “racists,” and on the concept of tolerance reciprocity has been precisely to challenge the leftist narrative that “hatred” is a defining feature of the right.  Too many leftists indulge racial politics at its worst by using racism to shut down any rational discussion and to consign their opponents to unredeemable illegitimacy.

There is racism in America – but not in the proportions shouted at us by anti-racist haters.  There is Islamophobia in America – but not in the proportions shouted at us by anti-racist haters.  As a people, we do not condone actual racism.  In fact, we are less tolerant of it, given our amazing diversity, than any people anywhere else.  The racism in virtually every other country dwarfs our own.  In most Muslim countries, shocking anti-Semitism is state policy and incorporated into educational texts.  America has been an enlightened beacon by comparison.  Why is this not a cause to celebrate our American culture?  Why does dialogue routinely deteriorate into simplistic condemnation of American “racism”?

On this critical issue of dialogue in America – dialogue that should persist constructively beyond the pernicious trump card of easy “racism” smears – we have urgently needed President Obama’s promised post-racial leadership.  But he has been so sadly silent.

 

UPDATE Aug. 28, 2010: In his latest column, Charles Krauthammer ably summarizes the concern that has animated several of my posts: the abortion of dialogue when conservatives and moderates are recklessly dismissed as bigots.  From the column:

Promiscuous charges of bigotry are precisely how our current rulers and their vast media auxiliary react to an obstreperous citizenry that insists on incorrect thinking.

– Resistance to the vast expansion of government power, intrusiveness and debt, as represented by the Tea Party movement? Why, racist resentment toward a black president.

– Disgust and alarm with the federal government’s unwillingness to curb illegal immigration, as crystallized in the Arizona law? Nativism.

– Opposition to the most radical redefinition of marriage in human history, as expressed in Proposition 8 in California? Homophobia.

– Opposition to a 15-story Islamic center and mosque near Ground Zero? Islamophobia.

Krauthammer’s tone is a touch more triumphant than I feel, but his trenchant style is worth the read.

Arizona immigration ruling is constitutionally flawed

Judge Susan Bolton ruled on the federal government’s motion to enjoin enforcement of the Arizona immigration law, commonly known as S.B. 1070.  She split the baby — most of the law will still go into effect, but its most controversial provisions will be enjoined.  She concluded that these controversial provisions are likely to be preempted by federal law.

 The ruling is intelligent and well-organized, but, in my early opinion, seriously constitutionally flawed.

Here is my guiding principle (articulated two weeks ago): if the Arizona law is actually administered in a racist or disruptive way, then by all means, godspeed, sue and win.  But the juggernaut assault on the Arizona law as presumptively unconstitutional because it is presumptively racist and presumptively disruptive of federal immigration law is nonsense.  There is a “strong presumption of constitutionality that applies to legislative enactments.”  First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304 (1987). 

Judge Bolton ruled that essential parts of the Arizona law are presumptively bad without an adequate basis for so ruling.

The key controversy is the requirement that a person arrested for commission of crime have his or her immigration status confirmed before release.  Judge Bolton declared that provision likely unconstitutional because:

(1) “This requirement … is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive … that aliens not be subject to ‘the possibility of inquisitorial practices and police surveillance.'”  Hines v. Davidowitz, 312 U.S. 52 (1941).

 (2) “The number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.”

Essentially, Judge Bolton rules that the Arizona law disrupts federal immigration enforcement because it might add a burden to legal aliens, and because it might burdensomely increase the immigration status inquiries to the federal agency charged with answering inquiries as to immigration status.

First — “inquisitorial practices and police surveillance”?  That’s rhetorical hyperbole drawn from a case decided in 1941, which was 69 years closer to the Spanish Inquisition, and a very different world of race relations — and by the way, it had to do with state registration of legal aliens.  That Judge Bolton would play upon that anachronistic hyperbole might disclose an agenda. 

Second, whatever might constitute an impermissible “inquisitorial practice and police surveillance,” the simple and straightforward inquiry into immigration status doesn’t seem to implicate the darkness of either the Inquisition or a police state.  It’s just, are you here legally or not?

Third, the Supreme Court actually held in 1941 that “our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  Neither of Judge Bolton’s conclusions address that question.  Had the Hines question been the question here, the answer is that the Arizona law does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Fourth, the federal government argued, and the district court accepted, that S.B 1070 “necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’ (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).”

The Supreme Court actually held in Hines v. Davidowitz as follows:  “The legislative history of the Act indicates that Congress was trying to steer a middle path, realizing that any registration requirement was a departure from our traditional policy of not treating aliens as a thing apart, but also feeling that the Nation was in need of the type of information to be secured.”

In other words, the Supreme Court was noting Congress’ ambivalence.  Judge Bolton’s, and the federal government’s, lifting of the bolded language out of context misrepresented the Supreme Court’s acknowledgement that there can be a countervailing interest in simple information — of exactly the sort SB 1070 is designed to provide.

Fifth, the federal government’s fact-sensitive claim to be overwhelmed — and that SB 1070 is therefore preempted — is disingenuous.  The district court accepts the federal government’s contention, without a factual inquiry,  that SB 1070 will occasion a surge of inquiries into immigration status, and that this surge will disrupt the federal government’s “priorities” as to immigration.

So the federal government cannot be expected to do more of what it is statutorily charged with doing.  Multiple inquiries as to immigration status sufficiently overwhelm the federal government — such that the federal government’s “priorities” are disrupted.  If vindicated on appeal, this federal government argument becomes a bullet-proof aggrandizement of federal power.

The federal government and the district court rely upon Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state “fraud on the FDA” law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”).

In Buckman, the unsolicited “deluge of information” would have been “information” designed to forestall elaborate fact questions in civil litigation.  There is no upper end to the magnitude of “information” one might submit to an agency in theoretical self-protection against civil litigation.  That’s why the Supreme Court found it unduly burdensome to the agency.

S.B. 1070 poses no such “deluge.”  Quite the contrary, the single, simple inquiry contemplated is immigration status — which the federal government itself assures us is a swift determination.  The federal government’s own sworn affidavit in the Arizona case describes the procedure administered by ICE, which “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.”

In other words, we can get the answer easily and quickly.  There is neither “deluge” nor “delay” here — only a possible increase in precisely the types of inquiries the federal agency is charged by law with dispatching “promptly.”

I say “possible increase” because I don’t even necessarily see the federal government’s factual predicate. Wouldn’t the vast majority of arrests permit the Arizona authorities to conclude that there was no illegal immigrant issue here (and therefore no need to involve the federal government)?  The Arizona statute does not mandate by its terms that every person arrested be subject to federal immigration status validation.  So what will actually happen is a real world determination that there is no immigration issue, or a real world neglect of any possible immigration issue.

Even if the foregoing is subject to factual dispute, it should have militated against entry of a preliminary injunction.  The federal government telling a state it cannot enforce one of its duly enacted laws even before it takes effect is not undertaken lightly.  The legal presumption is against the federal government.

It bears noting in closing that if the federal government’s sweeping theory — partially embraced by Judge Bolton — that the federal government’s dictates as to immigration law are supreme and exclusive, then it cannot be doubted that so-called “sanctuary cities,” the municipalities that conclude — with ordinances — that they will not cooperate with federal immigration law and will not report to the federal government illegal aliens arrested for crimes (Washington, D.C.; New York City; Los Angeles; Chicago; San Francisco; Santa Ana; San Diego; Salt Lake City; Dallas; Houston; Austin; Detroit; Jersey City; Minneapolis; Miami; Denver; Baltimore; Seattle; Portland; New Haven; Portland, Maine), are standing fully athwart the intentions of Congress and the purpose of federal immigration laws, in manifest violation of federal law — and they should be held accountable by DOJ lawsuits.

[Also published at The Daily Caller.]

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