Similar misgivings — filtered through a legal doctrine called "field pre-emption" — seem more likely than not to persuade the courts to strike the law down.

But please, let’s can the hysteria. The problems with this law — and with copycat proposals in at least 10 other states — are a far cry from the images of Nazi Germany, apartheid, and the Jim Crow South conjured up by leftists who would denounce any effort to discourage illegal immigration.

To correct some misconceptions:

• The solid majority support for the law among Arizonans — and the 51 percent support among other Americans who told Gallup pollsters that they had heard of the Arizona law — is not driven by racism. It’s driven by frustration with the federal government’s failure to protect Arizona and other border states from seeing their neighborhoods, schools, hospitals, and prisons flooded by illegal immigrants. Worse, "It’s terrifying to live next door to homes filled with human traffickers, drug smugglers, AK-47s, pit bulls, and desperate laborers stuffed 30 to a room, shoes removed to hinder escape," as Eve Conant reported in Newsweek.

• Although it’s true, and most unfortunate, that absent robust administrative safeguards the Arizona law could lead to racial profiling by police, it certainly does not require racial profiling. Indeed, a package of revisions signed on April 30 by Arizona Gov. Jan Brewer seeks to prohibit racial profiling. The revisions did this by deleting the word "solely" from the original, April 23, law’s provision barring investigation of "complaints that are based solely on race, color, or national origin."

• Nor does the new law, as revised, empower police officers to stop anyone they choose and demand to see their papers. Rather, it authorizes such demands only after "any lawful stop, detention, or arrest made by a law enforcement official," and only if "reasonable suspicion exists" — apart from ethnicity — that the person "is an alien and is unlawfully present in the United States." Some of the law’s language could tempt police to demand papers from people suspected of petty violations of civil ordinances such as having an overgrown lawn, but it’s unclear how that will play out in practice.

• Neither is it fair to say — as did a New York Times editorial — that Arizona’s "defining the act of [an alien’s] standing on its soil without papers as a criminal act is repellant." In fact, since 1952, the law of the United States has defined the act of an alien’s standing on its soil without papers as a criminal act.

So is there a problem with Arizona stepping in to enforce its own identical copy of a federal law that the feds barely attempt to enforce?

The problems with this law are a far cry from the images of Nazi Germany, apartheid, and the Jim Crow South conjured up by leftists who would denounce any effort to discourage illegal immigration.

Actually, there is a problem. It’s more subtle than suggested by the dependably hyperbolic Times editorial page. But it may well persuade the courts to find the new Arizona law unconstitutional.

The Supreme Court has long held that by adopting a comprehensive regulatory regime for immigration matters, Congress has manifested an intent to "pre-empt the field" and thus to sweep away state laws addressing the same issues.

To be sure, federal immigration laws do not specify that states may not do what Arizona has done. Nor do they conflict directly with the Arizona law. So the pre-emption challenges now being prepared by civil-rights groups and others are not sure to succeed.

But they aren’t sure to lose, either. The Supreme Court has held that federal law regulates immigration so comprehensively as to pre-empt any state law — even one purporting to help enforce federal law — that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." So said the justices, in Hines v. Davidowitz, in 1941.

The strongest argument for federal pre-emption of the Arizona law is that Congress has carefully balanced the need to pursue the most-dangerous criminals among the estimated 12 million to 20 million illegal immigrants in the U.S. against the risk of harm from overly aggressive or arbitrary pursuit of hard-working people who immigrated — legally or illegally — years ago.

The justices may well hold that "Congress would prefer to have U.S. agents making the decisions about what individuals are realistic suspects," says a leading Supreme Court litigator who declined to speak for attribution, "and not having potential vigilante groups (even if they are wearing a badge) running around sweeping up individuals, many of whom are here legally."

Another consideration is the pre-eminence of the federal government in matters touching on foreign affairs. Mexican President Felipe Calderon, among others, has sharply condemned Arizona’s action.

Although a 1976 decision, De Canas v. Bica, recognized an exception to the pre-emption doctrine for state laws regulating conduct of only "peripheral concern" to the federal immigration laws, the issues raised by the new Arizona law seem more than peripheral.

All of this may sound rather technical and abstract, and you may wonder: Is that really the way that judges and justices think? Don’t they worry about how the Arizona law will affect the lives of real people?

Of course they do. But that begs the question of which real people have the best claim on what Obama used to call judicial "empathy." The hard-working Mexicans and Central Americans whose crime (a misdemeanor, under both federal and Arizona law) was sneaking across the border long ago to seek a piece of the American dream? The legal immigrants and children of immigrants who fear being hassled by racial-profiling police? The other Arizonans who feel that they are being overrun by illegal immigrants and fear that the murderous Mexican drug lords’ reign of terror is starting to spread across the border?

Principled judges and justices are less comfortable making such open-ended value judgments — or, to be precise, making them overtly — than they are following precedents that weigh such apparent abstractions as whether an admittedly failed federal regulatory regime should pre-empt a chaotic collection of inconsistent state laws that might, or might not, deepen the dysfunction.

The bottom line is that it’s a pretty good bet that the four more-liberal justices, including any successor to retiring Justice John Paul Stevens, would vote to strike down the Arizona law. And even if all of the four more-conservative justices went the other way — no sure bet — swing-voting Justice Anthony Kennedy might well vote with the liberals.

A Supreme Court decision striking down the Arizona law would be most likely if there were evidence by the time the case reached the justices of police abuses so serious and widespread that the only effective remedy would be wholesale invalidation.

And therein lies a paradox: If civil-rights groups and other plaintiffs succeed in persuading lower federal courts to block the law from taking effect — and thus from spawning any police abuses — they may well hurt their own chances of prevailing in the Supreme Court.

So they might be wise to wait for evidence of real police abuses rather than rushing to sue over potential abuses — which seem somewhat less likely after the April 30 revisions than before. But the race to raise funds by piling lawsuits atop hyperbolic rhetoric is on.

The Obama administration faces a similar quandary, and others, in deciding whether to file its own court challenge.

Homeland Security Secretary Janet Napolitano testified on April 27 that the Arizona law will "detract from and siphon [federal] resources that we need to concentrate on those… who have committed the most serious crimes." But she could avoid that outcome — while taking some political heat — simply by instructing federal agents not to cooperate with Arizona police in enforcing the new law.

Meanwhile, an extraordinarily broad coalition of immigrant, civil-liberties, business, and other groups — including virtually all of those attacking the new Arizona law — has urged the Supreme Court to review and strike down another Arizona immigration law, which was adopted in 2007 to punish employers of illegal immigrants.

The justices asked Solicitor General Elena Kagan more than six months ago to take a position on the plaintiffs’ petition. She has not yet responded.

Might the delay have something to do with the fact that it was Napolitano, then governor of Arizona, who signed the 2007 law? Or the fact that Kagan, a leading contender to fill Stevens’s seat, will be savaged by many conservatives if she attacks either Arizona law and by many liberals if she defends either of them?

Inquiring minds in Congress will want to know.

This article appeared in the Saturday, May 8, 2010 edition of National Journal.

The post Courts Could Void Arizona’s New Law appeared first on Stuart Taylor, Jr..

So here’s a modest three-part plan. It would cut down the flow of illegals as efficiently and humanely as possible; use a federally funded minimum-wage increase to bring at least some unemployed Americans into the job market; and, while we’re at it, narrow the vast income gap between skilled and unskilled workers.

First, Congress should create a system of forgery-proof, theft-proof identity cards and a more robust enforcement process to put teeth in the laws against employing illegal immigrants. The influx of illegals will plunge if these workers cannot find jobs.

Experience shows that as long as there are jobs for illegal immigrants, neither a wall along the Mexican border — unless festooned with machine-gun towers and troops under orders to shoot climbers on sight — nor such punitive measures as making illegal immigration a felony will greatly slow the influx.

The 1986 immigration reform law sought to slow the flow of illegals by slapping sanctions on employers who hire them (while giving amnesty to the millions already here). But a coalition of employers eager to hire low-paid, hardworking illegals and libertarians obsessed with the specter of Big Brother killed proposals to create forgery-proof, theft-proof identity cards.

The result was to render the employer sanctions almost completely ineffective. Illegals can easily buy forged Social Security cards, driver’s licenses, and other identification documents upon which employers are entitled to rely. And many employers are happy to hire illegals as long as their paperwork passes muster.

The "Real ID" law adopted by Congress last year requires states to standardize driver’s licenses by 2008 and to deny ordinary licenses to illegals. But it allows employers to accept other forms of identification and does not require that driver’s licenses include Social Security numbers.

The bills adopted by the full House and the Senate Judiciary Committee do contain detailed provisions to create more ID cards that can be authenticated. But they don’t go far enough. For example, they don’t require job applicants, now or ever, to present biometrically verifiable cards.

Why is there not a more serious effort to solve the fake-ID problem that is the Achilles’ heel of all efforts to slow illegal immigration — not to mention efforts to identify possible terrorists? Because of the intransigence both of employers who like the status quo and of civil libertarians imbued with a peculiarly American fear of slipping down the slope toward totalitarianism.

Libertarians of the Left and the Right worry about society slipping into such police-state habits as cops randomly stopping pedestrians and demanding to see their papers. Libertarians also warn that high-tech identity cards could include all sorts of private information that would inevitably fall into the wrong hands.

And they dispute claims that a reliable identity-card system would help prevent terrorist attacks.

The libertarians may be right on the last point. Al Qaeda has plenty of eager young recruits who — like Mohamed Atta — have clean records and could obtain valid biometric passports or visas to enter the United States under their own names as legal tourists or students.

But we are already a long way down the slope that scares civil libertarians, and it has proven not to be very slippery. Various laws already require employers, airlines, security screeners, bartenders, and many others to demand ID cards. This has not led to random identity checks on the streets or other police-state measures. There is no reason to suppose that requiring authenticatable ID cards would either.

As for concerns about privacy, a biometric ID card establishing that a job applicant is legally qualified to work, and is the person he says he is, need not contain any more private information than is already printed on your driver’s license. And the right to privacy does not include a right to lie about who you are.

Second, as President Bush and others have suggested to a greater or lesser extent, Congress should in some way grandfather the millions of illegals who have already settled here to avoid disrupting their lives and those of the many Americans who depend on them. A forgery-proof, theft-proof identity card would do more harm than good if adopted as part of a punitive, enforcement-only immigration law.

No force on earth is going to trigger the departure of very many of the more than 11 million illegals who have already settled here in pursuit of their own American dreams and (in many cases) have had children who are U.S. citizens and formed bonds with their employers and others.

A law requiring dismissal of all current employees who could not produce biometric ID cards could be enforced only on a random, inherently capricious basis and would only drive those employees fired by law-abiding employers into the hands of unscrupulous exploiters.

A law barring employers from hiring newly arrived illegals without authenticatable ID cards, on the other hand, would be both enforceable and relatively humane. Mexicans and others weighing the pros and cons of sneaking across the border would be on notice that they would have a very hard time finding jobs and would be constantly at risk of dismissal and deportation.

Third, Congress should raise the minimum wage from the current $5.15 to at least $9.15 per hour, for Americans and legal residents only. And to dispel concerns about killing jobs that aren’t worth $9.15 per hour to employers, Congress should reimburse employers for some or all of the increase.

This higher wage would meet — or at least test — the suggestions by Bush and others that we need an annual influx of as many as 400,000 low-skilled "guest workers" (if not illegals) to clean our offices and hotel rooms, cut our grass, plant our gardens, staff our chicken factories, pick our fruit, and do other jobs that Americans won’t take.

More Americans would be willing to take such jobs if they paid more. The jobs would pay more if employers could no longer tap into a constant stream of illegal immigrants willing to work for subsistence wages. And if unskilled jobs paid a lot more, they might alleviate one of our most intractable social problems by luring into the job market young, unemployed inner-city males and others who now prefer lives of sponging off others, idleness, drugs, and petty crime.

Hence my proposal. The cost to the government would be small change in the context of the current federal budget. About 2 million workers currently earn the minimum wage or less, according to Labor Department data. Many are part-timers. Assuming an average workweek of 30 hours, or 1,500 hours per year, a $4 hike in the minimum wage would cost about $6,000 per worker per year. That’s about $12 billion in all — one-fourth of the net worth of a single man, Microsoft mogul Bill Gates. Add to that a few more billion to cover the raises of workers now earning between $5.15 and $9.15 an hour.

I am not so naive as to assume that a $9.15 minimum wage would inspire millions of inner-city males to abandon lives of idleness and drugs for work mowing lawns, cutting up chickens, or picking fruit. But it might pull some of them — the ones motivated to climb out of the underclass — into the job market. That would be good for them and good for the rest of us.

It might be argued that a government-subsidized minimum-wage increase would duplicate the Earned Income Tax Credit. And so it would to some extent. But for some workers, the prospect of taking more money home every week would be a more powerful incentive than the promise of an Internal Revenue Service check months down the road for those who can figure out how to fill out and file the right forms.

It might also be argued that a government-paid minimum-wage increase would go mostly to people who are already working minimum-wage jobs and thus need no new incentive. But this is no objection unless you begrudge an exceedingly modest transfer of wealth from those of us who are well off to those of our fellow citizens who are willing to work but are struggling to get by.

The post Opening Argument – Missing From the Immigration Debate appeared first on Stuart Taylor, Jr..

That way of looking at immigration, penned by the late ecologist Garrett Hardin in 1974, is no doubt too alarmist. But part of me fears that Hardin may be partly right — that in the long run, the massive legal and illegal immigration of the world’s poor, huddled masses will swamp our nation’s prosperity. Immigration has already depressed the wages and job opportunities of low-income native-born Americans. The notion that immigrants fill "jobs that Americans don’t want" is a cop-out that flies in the face of economic reality. The reason Americans in some areas won’t take jobs washing dishes, cleaning hotel rooms, mowing lawns, and picking fruit is that immigrant labor has driven the wages down, as the liberal Harvard sociologist Christopher Jencks demonstrated two years ago in The New York Review of Books.

But while Hardin would have been horrified by President Bush’s January 7 proposal to move toward a more generous policy on illegal immigration, I think it’s a good start.

How to reconcile these seemingly conflicting thoughts? Begin by recognizing what no politician can safely acknowledge: The inescapable choice, at least in the short run, is between cruelty to poor would-be immigrants and cruelty to the poor native-born Americans. We have a moral duty to treat both groups with sympathy and compassion. But the more direct impact of immigration policy on those seeking to immigrate, and the disagreements among experts about whether and how much the current wave of immigration will help or hurt Americans in the long run, argue for a policy shaped by generosity rather than by possibly exaggerated fears.

The case for a generous approach is enhanced by recognition of the political impossibility of stemming the tide that is adding 200,000 to 500,000 new entrants a year to an illegal-immigrant population estimated to total 8 million to 14 million. The only way to stop the flow would be to completely militarize the Mexican border, require all Americans to display on demand a biometrically encoded national identification card, launch regular dragnets through barrios and workplaces, and engage in other police-state measures abhorrent to most Americans. While most voters want to cut down on illegal immigration, most would not support such draconian and constitutionally troublesome policies.

Consider the fate of the 1986 immigration reform act. Its purpose — other than giving amnesty to the millions of illegals already living in the U.S. — was to end the influx by using tough measures including tight border controls and penalties to deter employers from hiring illegals. But it failed abjectly: Despite huge increases in the Border Patrol’s budget and number of officers — which have driven desperate Mexicans to border-crossing efforts so dangerous that one a day dies en route — the flow of illegals continued to soar. Meanwhile, Congress’s refusal to adopt a national identity card and the government’s lack of political will to enforce the employer sanctions doomed the reforms to ineffectiveness.

The political forces opposing tough measures to cut down immigration have grown stronger since 1986 because of the rising numbers and clout of pro-immigration Latinos, and because many labor leaders have shifted from opposing immigration — as did the late Cesar Chavez — to supporting it, the better to recruit as members people who will come to America one way or another.

Massive illegal immigration thus seems destined to continue unless and until Mexico and other poor countries become prosperous enough to keep their people. This is not to argue for ending all immigration restrictions or treating illegals with generosity as soon as they have successfully sneaked across the border. Doing that could launch a new tidal wave that would rapidly drive down wages, drive up unemployment, and make our overcrowded metropolises more and more like Mexico City and Tijuana.

The critical question for policy makers should be at what points along the spectrum of harshness the moral and practical costs of making life difficult for illegals come to outweigh the benefit of deterring them from coming and staying. Denying welfare benefits to recently arrived illegals, for example, seems a logical way to avoid becoming a magnet for immigrants seeking handouts. Barring illegal immigrants from public schools, on the other hand, seems repugnant both because it would condemn innocent children to lifelong membership in a growing, uneducated underclass in our midst — most are here to stay — and because it won’t deter the vast numbers of would-be illegal immigrants who have no children.

Some conservatives justify a punitive approach by stigmatizing illegal immigrants as lawbreakers who should be treated harshly in fairness to the millions of others who wait overseas to qualify for legal immigration. This cannot withstand analysis, in my view. Aside from a tiny minority of terrorists, smugglers, and criminals, most of those who violate immigration laws by sneaking across our borders deserve to be treated with dignity and respect — even if they must be deported to enforce the law.

Imagine a poor, unemployed Mexican whose brother sends word that he can get him a job picking fruit, if he can make it across the desert to California without getting caught or killed. Inspired by the same American dream as our ancestors, he comes and works long hours so that he can send money home to support his destitute family and make a better life in the land of opportunity. Would you fault him for breaking the law of a country that is happy to look the other way while he and millions of other illegals do its lowliest jobs? I wouldn’t, any more than I would condemn a pain-racked patient for using medical marijuana to relieve his agony or a pedestrian for jaywalking to rush medicine to her sick child. And with all respect to those who wait to immigrate legally, I suspect that most do so not because of legal scruples but because they are in less desperate straits or more likely to be admitted.

Bush’s guest-worker proposal strikes me as a step in the right direction because it is more generous to illegals than the status quo while seeming unlikely to touch off a massive new influx. It would allow those who have already immigrated illegally (and those who are prepared to do so) — if they have jobs or job offers — to live and work openly (and pay taxes) for at least six years. This would mean better chances of being promoted, labor-law protections, and opportunities to get driver’s licenses, open bank accounts, and visit families at home without fear of being barred from returning. My speculation that these improved living conditions would not spur a large net increase in immigration is based on two premises: The new incentives for employers to hire guest workers would mean fewer jobs for illegals, and the pace of illegal immigration appears to be determined not by living conditions in the barrios but by the availability of jobs.

The glaring flaw in Bush’s so-far-vague proposal is the lack of any clear-cut process for allowing guest workers to stay more than six years. This may help politically and prevent the proposal from becoming a magnet for more immigration. But if the final version appears to require all guest workers to leave after six years, people determined to stay will either shun the program or return to the shadows once their terms have run.

The challenge for Bush and Congress is to design demanding but achievable steps for guest workers to earn permanent residency and eventually citizenship, such as learning English, passing exams on our constitutional traditions and history, paying their taxes, avoiding trouble with the law, and keeping their children in school. The challenge for critics — who have identified many a problem with Bush’s proposal, as could be done with any immigration proposal — is to come up with a better idea. The challenge for the rest of us, if a guest-worker program passes, will be to give those working to become Americans a sense of belonging — and give the lie to the identity-politics ideologues who will tell them they are victims of oppression by the white-dominated society that took them in. 

The post Opening Argument – Bush’s Immigration Plan: A Step In the Right Direction appeared first on Stuart Taylor, Jr..

"Reasonable people would call a two-year houseguest who is not a relative and who vacuums, does laundry, looks after the kids, and receives free room and board and spending money a maid. But Ms. Chavez had insisted that Marta Mercado … was a needy charity case…. [Chavez] telephoned a former neighbor, presumably to coach her on what to say about Ms. Mercado [to] FBI agents…. The law is quite clear. Harboring an illegal alien is a felony." -The New York Times

"As one online political wag put it, is this the definition of compassionate conservatism, to bring illegal immigrants into your house, put them to work, and then not pay them?" -Los Angeles Times

These are some of the things they said about Linda Chavez as her nomination to be Labor Secretary was going up in smoke. For giving from 1991-93 what liberals used to call "sanctuary" to a battered and depressed illegal immigrant from Guatemala who clearly was a needy charity case, the conservative Chavez has now been smeared as an exploiter, a criminal, a liar, and a hypocrite.

The attackers include some of the same folks who would have beatified Hillary Rodham Clinton, Donna Shalala, or Barbra Streisand for doing the same thing. And their attacks only intensified when Chavez showed, at her awkward but moving Jan. 9 press conference, that Marta Mercado was just one of more than a dozen needy people she had helped over the years. All this smacks of that distinctive brand of hypocrisy exuded by people who would never dream of inviting a battered woman into their own homes, but consider themselves compassionate because they patronize needy people en masse through liberal political causes-such as deploying government bureaucrats to help battered women, or blocking efforts to give poor kids alternatives to rotting public schools.

More broadly, the Chavez episode exemplifies the tendencies of many conservatives and liberals alike to presume the basest of motives for even the most honorable of acts by their ideological adversaries, to draw the worst possible inferences from the flimsiest of allegations, and to demand the harshest of consequences for the most trivial of offenses. In this sense, the journalists and others who so casually smeared Linda Chavez have something in common with conservative former Sen. John Ashcroft, R-Mo., who smeared Missouri Supreme Court Judge Ronnie White in October 1999 as "pro-criminal." (See my column, NJ, 1/13/01, p. 78.)

Chavez did make two big mistakes that (she admits) sealed her doom. The first was her Dec. 21 phone call to a neighbor who had employed Mercado. The New York Times and some others have leaped recklessly to the conclusion that this was "presumably" an effort to coach the neighbor on what to say to FBI agents checking Chavez’s background. Chavez says her purpose was to refresh her own hazy eight-year-old recollection about "when Marta had been in my life." She also hoped for and got an assurance that the neighbor would not go to the media. But Chavez stresses that she told the neighbor (a lawyer and a Democrat) to be truthful with any FBI background checkers.

This account has been met with understandable skepticism, in part because Chavez unwisely chose not to tell Bush background checkers about the phone call. But the neighbor has not publicly contradicted Chavez. And I see no reason not to give Chavez the benefit of the doubt. At the very least, her account of this conversation is far more credible than (say) President Clinton’s preposterous claim that he was seeking to refresh his own recollection when he coached Betty Currie to lie about Monica Lewinsky.

Chavez’s second big mistake was failing to bring up Mercado when a Bush transition official and (later) an FBI background checker posed open-ended questions about whether she had ever done anything that could be used to embarrass her or George W. Bush. This fell short of any would-be nominee’s ethical duty of complete candor with background interviewers, and Bush may therefore have been justified in letting her sink. But Chavez’s omissions cannot fairly be called lies-not, at least, unless one assumes without evidence that she was hiding something illegal or improper.

Inadequate disclosures aside, the Chavez-Mercado relationship at the root of this fuss appears to have been exactly what both women say it was: a commendable and legal act of charity that unexpectedly evolved into the kind of relationship one can imagine having with an impecunious houseguest who ends up staying for many months. The hundreds (perhaps thousands) of dollars Chavez gave Mercado at irregular intervals for such expenses as airfare to visit Guatemala were intended to be just that-gifts. This belies the suggestions that Chavez violated the minimum-wage law or failed to fulfill a (nonexistent) obligation to pay Social Security taxes. Nor did Chavez flout the criminal ban against intentionally "harboring" illegal immigrants-not, at least, under any reasonable interpretation of that law. It was apparently aimed not at good Samaritans, or homeless shelters, or hospitals who feed and shelter illegal immigrants out of compassion, or even at domestic employers, but rather at those who actively conceal illegal immigrants, typically in alien smuggling operations.

The most natural inferences from Chavez’s essentially uncontradicted account of the relationship are these: She took the badly abused Mercado into her home at the request of a professional acquaintance. Mercado spent most of her time working for the neighbor, going to English classes, and socializing with friends. She also spent much time alone in her room. She did not act as a nanny for Chavez’s three children, who ranged in age from 13 to 23 in 1991 and had no need of one. (Chavez was working exclusively out of her home at the time.) She spent no more than about 10 hours a week doing chores, such as laundry, washing dishes, and picking up after Chavez’s teen-age sons. Chavez, not Mercado, did the cooking.

The stories told in halting English by Ada Iturrino, Benson Bui, Margarita Valladares, and others about Chavez’s kindnesses powerfully corroborate her account of her relationship with Mercado. Iturrino is the mother of two Puerto Rican children in New York for whom Chavez has paid more than $10,000 in tuition so they could attend Catholic schools. Bui and his brother were refugees from Vietnam whom Chavez had taken into her home for several weeks in 1979. Valladares told of continuous help from Chavez over a period of more than 20 years. Says Abigail M. Thernstrom, a leading scholar on race relations who was recently appointed to the U.S. Commission on Civil Rights: "Linda is an amazingly generous, thoughtful person. For as long as I’ve known her, which is 25 years, she has been unique among my friends in the degree to which she has reached out to people in need."

Why, in the face of such evidence, do so many liberals leap to the most damning of conclusions about a prominent conservative? And why do so many conservatives leap to the most damning of conclusions about the motives or activities of liberals such as (say) Janet Reno or Al Gore? This is the poison of partisan thinking, which has seeped into the bloodstream of official Washington.

By the way, the assertions by The New Republic and others that Chavez hypocritically "trashed" Zoe Baird in 1993 for employing an illegal immigrant couple as a nanny and driver are bogus. These claims stem from a misinterpretation of a passing reference Chavez made to Baird’s illegal-alien problem during a December 1993 television interview focusing on Bobby Ray Inman’s nomination to be Defense Secretary. The interview transcript shows Chavez suggesting a bit ungenerously that Baird would not have been a strong candidate for Attorney General but for President Clinton’s insistence on appointing a woman. But Chavez said nothing that could fairly be called an attack on Baird for hiring (let alone for housing) illegal immigrants.

Chavez had not been a player in the bipartisan firestorm 11 months earlier in which, as I later detailed in slightly overwrought prose in The American Lawyer, "Zoe Baird was monstrously caricatured for the smallest of sins, pounded by press and popular righteousness, and crucified by prejudice and hypocrisy." Now Linda Chavez-who hired no illegal immigrant and violated no law-has suffered much the same fate.

The post Legal Affairs – Smearing Linda Chavez: The Poison of Partisan Thinking appeared first on Stuart Taylor, Jr..

All this, also known as Proposition 187, is brought to you by some of the same "conservatives" who are so eager to stem the expansion of our home-grown underclass as to tout the "let ‘ em starve" variant of welfare reform, and so eager to liberate The People from big-government meddling as to seek tax cuts that would bankrupt the nation.

Of course Proposition 187 supporters like California Gov. Pete Wilson say that the vote was about saving the taxpayers the estimated $1.4 billion a year that it costs to educate more than 300,000 children of illegal immigrants. But any short-term savings will be dwarfed by the long-term costs.

Supporters also suggest that 187 will discourage illegals from coming to sponge off U.S. taxpayers. The columnist George Will, for example, paints the initiative as a righteous refusal of "welfare state" benefits to "people seeking entitlements from a state in which their presence was illegal." This effort to tar public education as some kind of exotic welfare-state entitlement combines demagogic pap with mindless scapegoating of innocent children.

Contrary to the smarmy implication of 187-boosters like Will, illegal immigrants are already ineligible for welfare, food stamps, and most other state and federal benefit programs under current law, as they should be. Proposition 187’s welfare ban is a pure redundancy.

What the initiative would add (if upheld by the courts) are cutoffs of schooling and non-emergency health care. It would also require education and health officials to report to immigration authorities any person "reasonably suspect[ed]" of illegal immigration. Aside from its ugly police-state overtones, this Stalinist-snitch provision would drive even born-in-the-U.S.A. citizens out of the public schools lest they be unwillingly enlisted as informants against undocumented parents.

Nor would these heavy human and other costs of Proposition 187 be offset by any substantial benefits, other than the short-term fiscal savings involved in slamming schoolhouse doors in the faces of children who will thereby become long-term burdens on society. Few illegal immigrants will be deterred from coming, because most of them seek work, not educational opportunities for their children.

It’s hard to come away from episodes like the triumph of Proposition 187 with much optimism about the electorate’s basic decency or common sense. But it’s the only electorate we have, so a search for mitigating explanations is appropriate.

One key to understanding this benighted vote may be that a certain moral confusion about how best to respond to illegal immigration is only natural, because most of us have uncomfortably internalized a national immigration policy that, perhaps necessarily, involves turning our backs on many suffering people and using arbitrary criteria to choose who gets in.

Immigration policy seeks to reconcile two irreconcilable impulses-our humanitarian aspirations and our fears of engulfment by the miseries of the Third World. The humanitarian approach would be to open the borders and invite all comers to share in the opportunities that drew our ancestors. But on a globe teeming with billions of suffering poor, such a policy could impose crushing burdens on our society, ultimately dragging our standard of living down toward that of places like Mexico City. Or so many of us fear. And in our fear we have long since broken the Statue of Liberty’s promise to take in the world’s poor, tired, hungry, huddled masses, without entirely abandoning the underlying aspiration.

This tension has given us immigration laws studded with a congeries of arbitrary distinctions that confound our moral and humanitarian intuitions: Refugees from political persecution are welcome (at least in theory), even if the dangers they flee pale in comparison with the starvation that stalks some others who, as mere refugees from economic hardship, are ineligible for asylum. But to the contrary, while Cubans of almost any description were admitted (until August), Haitian boat people were summarily returned to their persecutors without asylum hearings (until September, when the president sent in the Marines). And so on.

But notwithstanding the inevitability of a certain self-interested cruelty and arbitrariness, immigration policy should at least avoid involving this nation as an active accomplice in persecution, and should avoid gratuitous cruelty that does not serve our enlightened self-interest. The deal President Bill Clinton made with Fidel Castro in August to collaborate in preventing refugees from escaping Castro’s tyranny fails the first of these tests (as did Clinton’s previous policy on Haitian boat people).Proposition 187 fails the second.

The initiative’s barbarity lies not just in its cruelty-for all immigration restrictions are cruel- but also in the certainty that it will make things worse, not better, for the rest of us, as well as for illegal immigrants.

As all nine members of the Supreme Court agreed in 1982, "It is senseless for an enlightened society to deprive any children-including illegal aliens-of an elementary education… [and] to tolerate creation of a segment of society made up of illiterate persons."

Those were the words of then Chief Justice Warren Burger, in Plyler v. Doe, the 5-4 decision striking down a Texas statute that denied free public education to illegal immigrant children. While Burger’s was the dissenting opinion (he believed the Constitution provided no judicial remedy for such senselessness), he was in tune with the majority on the stupidity of the policy embodied by the statute. As Justice William Brennan Jr. wrote for the Court, that policy (like Proposition 187) would impose "a lifetime hardship on a discrete class of children not accountable for their disabling status," and thereby create a "permanent caste" of illiterates unable to "contribute in even the smallest way to the progress of our Nation."

The intelligent way to translate our fear of inundation by illegals into immigration policy is to spend what it takes to control the borders and to enforce the deportation laws against those who get across anyway. "The law should be enforced with dignity and often with regret," in the words of Grover Rees, a conservative Republican who was general counsel of the Immigration and Naturalization Service from 1991 to 1993, "not by letting people wander across the border and making their lives miserable once they get here."

Another key to understanding the California vote is that many voters said yes not because they really want to do what Proposition 187 says, but because they were beguiled into seeing it as a protest vote against the federal government’s failure either to control the borders or to reimburse border states like California for the costs of providing public services like education to illegal immigrants.

Indeed, exit polls show that many Proposition 187 supporters saw it largely as a symbolic gesture, because they expected its more draconian provisions to be struck down by the courts. (This is the sort of thing constitutional scholar James Bradley Thayer must have had in mind when he wrote in 1901 that a cost of "common and easy resort" to judicial review is a tendency "to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.")

But while Proposition 187 has indeed been tied up by a gaggle of temporary restraining orders, for now, Californians may eventually have to lie in the bed they have made for themselves, because the widespread predictions of judicial invalidation may well prove mistaken. Four of the five justices who voted to strike down the Texas statute in Plyler are gone, and today’s more conservative Court might well overrule it.

The justices would be wiser, however, to adhere to the Plyler precedent If ever there was an occasion for the judiciary to check the excesses of transitory popular hysteria, this is it.

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