December 13, 2011

Electoral Impact of AZ Immigration Case

Hold on to your hats for what promises to be the most controversial and politically significant Supreme Court term in memory. The Supreme Court’s decision yesterday to review the constitutionality of Arizona’s immigration law ensures that illegal immigration will be on the front burner in next year’s presidential and Congressional elections. Likewise for both ObamaCare – which the High Court agreed to review last month – and the timely issue of federalism, which is at the heart of both the Arizona and ObamaCare cases. As an article (“SCOTUS in '12 election is enormous issue”) in Politico explains
“Together, the [two] cases will help shape the national political debate as well as the direction of policy on one of the most contentious issues of the election: the power of the federal government [over states and individuals].”
In an October 3 op-ed in The Hill, CFJ’s Curt Levey explained why the lineup of cases asking for Supreme Court review would “likely make this the most important term in decades, while focusing Americans on several of the nation’s most emotional and divisive issues … at the perfect time to influence the 2012 election.” With yesterday’s decision to review the Arizona’s immigration law, what was likely has now become certain.

Moreover, as Levey points out in the Politico article, it’s not just the caseload that will impact the election:
“Levey noted that because of the health issues and ages of the current justices, up to three seats could open in the next presidential term. ‘Combine that with the cases they’re taking, and it sets up the Supreme Court to be an enormous issue in this election.’”
While the Arizona case’s electoral impact is inevitable, the direction of the impact is not as clear. If the Supreme Court upholds most or all of the Arizona immigration law when it rules this spring, it will be a victory for conservatives both legally and – in the short term – politically, as more states are encouraged to enact such laws.

However, at the polls next November, a legal loss may turn into a political plus for Democrats. When the Arizona law was first enacted, liberal activists used it to energize Hispanics. Expect a repeat if the law is upheld, this time in a presidential election year and with Supreme Court appointments as an additional issue.

Mark Krikorian, blogging for National Review Online, went so far as to speculate that
“the White House privately wants to lose the [Arizona] case — that way, they get an irritant off the table that can motivate Obama’s opponents, while also being able to show their leftist allies how important it is to get out the vote, however disappointed they might be in [Obama’s] performance, because he’ll appoint justices that won’t rule like this.”
Should the Supreme Court, instead, strike down the heart of the Arizona law, it will be seen as a vindication of President Obama’s controversial decision to sue Arizona and other states with similar laws. That will provide him with a temporary political lift and some additional brownie points with Hispanic voters. But good news only goes so far in getting Hispanic voters – or any voters – to the polls.

Instead, it will be conservatives – forced to look to the federal government again to slow illegal immigration and angry at a Court that seems to side with elite opinion on social issues – who will be highly motivated to elect a president capable of addressing these concerns. Several of the GOP presidential candidates have already made an elitist judiciary a campaign theme, including proposing various ways to curb judicial activism. The Gingrich campaign has a 54-page position paper on the subject.

It’s not just conservative voters who will be moved by a Supreme Court decision that puts responsibility for fixing immigration law entirely on the shoulders of the federal government. Such a decision is likely to make immigration a bigger issue in the presidential election for a broad spectrum of voters. That can’t be good news for Barack Obama and Congressional Democrats when 74% of Americans think the Arizona law doesn’t go far enough or is about right (CBS News Poll).