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Bloggings on Immigration Law

Roger Algase

What is the real meaning of last week's two stunning Supreme Court decisions for the future of immigration?

I am happy that my predictions about the outcomes of both of last week's momentous Supreme Court decisions were dead wrong, thanks to Justice John Roberts, who showed himself to be a jurist of great honesty and integrity.

In the decisions on Arizona's WSIP (Wo sind Ihre Papiere - "Hand over your papers!") immigration law and on the ACA (Affordable Care Act - isn't it now time to stop calling it "Obamacare"?), Chief Justice Roberts joined with the liberal Justices to i) uphold the rule of law, and ii) take an important step toward overcoming America's class and racial divides. Both of these results have important consequences for immigration, even though only one of the two cases dealt with immigration directly.

Immediately after the two decisions the voices of far right ignorance and hate started calling for Chief Justice Roberts' scalp. Will we soon start seeing bumper stickers calling for his impeachment, as was the case almost 60 years ago with Earl Warren?

This is not to say that either of last week's decisions was perfect. One of the most obnoxious features of Arizona's WSIP law was left intact. And calling the individual mandate to buy health insurance a tax, rather than a legitimate exercise of power under the commerce clause, will certainly provide plenty of material for the Republican billionaire super-pac attack ads between now and November. But, sometimes, there is a price to pay for doing the right thing.

It is also remarkable how far removed the legal technicalities in both cases were from the real issue of what kind of a country and society America will be. In the controversy about whether Arizona's anti-Latino hate law was "pre-empted" by federal power over immigration, one cannot help being reminded of Medieval scholastic debates over how many angels can fit on the head of a pin. 

Perhaps a more apt comparison to the discussion over the issue of whether the states also have the right to harass, persecute, imprison and expel Spanish-speaking immigrants, or only the federal government can do so, might be the debates in the Middle Ages over whether the sacred arm of the law had the "right" to burn heretics, or only the secular arm.

Similarly, the Supreme Court's obsession with the question of whether not buying health insurance means engaging in interstate commerce, or the even more arcane question whether a "tax" is the same as a "penalty", have more than faint overtones of the controversy over whether Platonic forms are the same as essences. With all due respect to the philosophy profession, what do these issues have to do with real life?

Especially, what does all the passionate (and, in the case of some of the dissents, vituperative) legal hair splitting have to do with questions such as whether 12 million minority immigrants without legal status have the basic civil and human rights that should be taken for granted in any free society? And what does it have to do with the equally basic question of whether 30 million Americans (and legal immigrants) should have access to health insurance, which often means life itself?

The real significance of these two decisions is how they reflect the class and racial divisions in America. At issue in the Arizona case was the status of a brown-skinned, Spanish-speaking underclass, despised by a white, English-speaking established class, (or at least some members of it who had gained control of that state's legislature and state house. I do not mean to suggest that all whites in Arizona hate Mexicans, something that would be very far from the truth.)

In the same way the Affordable Care Act case involved the status of an economic underclass, namely the 30 million Americans (and, no doubt, many legal immigrants too) of all ethnicities who cannot afford health insurance. Both of last week's decisions gave these groups hope of being able to become part of America's mainstream, which has also always been America's traditional immigrant dream.

Therefore, immigrants to America from all parts of the world, regardless of their type of legal status (or lack of it) should take heart from last week's two decisions. But immigrants and their supporters should also be on guard against the forces which want to abolish these gains and make America's class and racial divisions even worse. The people who want to keep upper class whites on top and minorities and the less well off on the bottom will be spending up to a billion dollars in order to accomplish this in November.

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 are those of the author(s) alone and should not be imputed to ILW.COM.