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Bloggings on Immigration Law

by Roger Algase

Has Romney disavowed Kris Kobach of Kansas? Will the Supreme Court disavow federal control over immigration, using the Obama administration's "disavowal" of Prosecutorial Discretion as a pretext?

According to an April 18 Article in the Huffington Post, Mitt Romney may have "disavowed" Kris Kobach of Kansas, the Secretary of State who wrote Arizona's racist Wo sind Ihre Papiere? ("Papers, please") immigration law and has supported similar draconian laws in other states, as well as strict voter ID laws in his own and other states intended to make it harder for minority US citizens to vote. During the primary, Romney openly welcomed Kobach's support, but now may have broken with him over the DREAM Act, which Romney may now be about to support, as long as it is a "Republican version" along lines suggested by Florida Senator Marco Rubio (i.e. almost indistiguishable from the Democratic version, which only 3 Senate Republicans voted for).

According to the HP, Romney's campaign is now describing Kobach as a "supporter", but not "advisor" to his campaign. As the November election comes closer, we can no doubt look forward to many more shifts, backtracks, variations, permutations, and clarifications, a/k/a flip-flops on immigration from "Slippery Willy" (as Willard Mitt Romney may one day come to be known, inheriting the mantle of "Tricky Dick" Nixon), while Romney seeks the impossible goal of attractling votes from both Hispanics and white supremacist bigots. The only prediction that can be made with a high degree of certainty is that by the time the election comes around, there will be no possible position on the immigration issue, or combination of positions, no matter how incompatible with each other, which Romney will not have supported.

Meanwhile, the Supreme Court is set to hear oral argument this week on the Constitutionality of Arizona's Wo sind Ihre Papiere ("Papers, Please") anti-immigrant hate law. The pretext for upholding the legitimacy of this law is that it "complements" federal immigration enforcement, as states are allowed to do according to Federal Immigration Law. However, it is clear beyond any possible doubt that this law, and its counterparts in other states, are diametrically opposed to federal enforcement policies.

For one thing, Arizona and the other state laws have adopted "attrition", or what Romney has called "self-deportation", i.e. making life into a living hell for unauthorized immigrants and their families, as official public policy. But the federal government has adopted an opposite approach, namely Prosecutorial Discretion, at least in theory, though as my colleage and fellow-blogger Matt Kolken has pointed out, not in practice. Possibly, the fact that the federal government has not in fact used Prosecutorial Discretion to close deportation proceedings administratively in more than a tiny fraction of cases may be seized on by the right wing Supreme Court majority as a pretext for holding that there is no conflict between Arizona's anti-Hispanic racial profiling law and federal immigration law. This week's argument may provide some more insights on this point.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.