Comment: The Supremes On State Police Powers - We take a look at our crystal ball, and the political road ahead in the 112th Congress on state regulation over immigrants (nota bene: NOT immigration). First a recap. Some time ago, the 9th circuit in Chicanos por La Causa Inc v. Napolitano found in favor of the state's police powers in Arizona, cert was granted in early summer, the hearing will happen early in 2011, with a decision in late spring 2011. The 3rd circuit recently took a 180-degree opposite tack in Lozano v. Hazelton, and found that there was substantial conflict with IRCA when local governments used their licensing powers, appeal will likely be taken, though cert may not be necessary since the aforementioned 9th circuit case will be decided in the meanwhile.
While some have said that it is futile to forecast which way the Supremes might move in a case, we believe that some reasonable predictions are safe to make, and moreover, are necessary to make in light of the significant, perhaps critical, role that the immigration vote will have in the 2012 election (by immigration vote, we mean both pro and anti). It is our opinion that Ginsburg, Breyer, Sotomayor and Kagan will likely take the 3rd circuit view and find pre-emption, upholding the supremacy of the federal legislature in immigrant matters. We further believe that Scalia, Thomas, Roberts and Alito will likely find that the States retain their powers on licensing matters, even when immigrants may be thus regulated, even harshly regulated. This will leave Justice Kennedy, in his usual role of tie-breaker. None of the above is particularly insightful, since the Court has split on roughly the above lines for quite some time now on many controversial topics. On this matter, we believe that Chief Justice Roberts will likely find a way to narrow the holding in such a way as to bring Mr. Kennedy on board with the conservatives, thus making for a conservative majority opinion. We believe that this is likely, and if we are correct, will have major implications for the 112th Congress and the 2012 presidential election. The reason is plain. Once given the green light by the Supremes, hundreds of bills and ordinances regulating immigrants will follow in dozens of states, making life hell for immigrants, the final chapter, in a way, of the “attrition through enforcement” strategy. Many, many states will likely follow Arizona down a dark road. We expect this will happen in short order, in fall 2011, and continue into the winter through the spring of 2012. This will bring out the nativist vote on the right, and the Latino vote on the left. The 112th Congress, should it tack right on immigration, will find itself under attack from both sides – for not being hard enough on immigrants, and for being too hard. Naturally, this will also affect the Republican primaries, further alienating the Latino vote from the Republican party. It may also affect the Democratic primaries, since, should President Obama be challenged, the Latino vote will likely be an important part of the challenger's coalition against the President. Of course, the President will have had nothing to do with the Supremes' decision on IRCA, but politics sometimes moves in crooked lines, not straight ones.
To sum up: IRCA is political dynamite, and to the extent that immigration practitioners and advocates are looking ahead at the 112th Congress and the 2012 election, they should be aware that the Supreme Court's expected ruling on Chicanos por La Causa early in 2011 will likely play a large part in their professional lives next year.
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ComingsNGoings: New Associate Winsor & Tirado, PLC is pleased to announce that Denis DaSilva has joined the law firm as an associate. Mr. DaSilva will focus on the intersection of criminal and immigration law in Arizona. He joins Rafael Tirado and Claudia P. Lopez. www.winsorlaw.com
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