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The legal battle over Arizona's anti-immigration law, S.B. 1070 will be fought at high noon today (eastern time). With Hispanic Americans demonstrating outside the Ninth Circuit courthouse in San Francisco, and Arizona Governor Jan Brewer sitting inside, the political stakes could not be clearer. Today's oral argument will be broadcast live on C-Span and my colleague Elizabeth Wydra and I will be live-blogging the hearing for Huffington Post.
Conservative candidates, such as Governor Brewer and Senate-hopeful Sharron Angle in Nevada, are hoping to ride a wave of xenophobic angst, fueled in part by high-unemployment rates, to an election victory on Tuesday. Progressives are hoping the conservative-led attack on immigrants and their children will drive a wave of Hispanic voters into their camp and help turn red and purple states like Arizona, Nevada and Colorado reliably blue.
We will get some short-term answers about how this political fight is playing out on Tuesday. The Nevada Senate race is particularly worth watching because Angle has run a controversial ad blaming Harry Reid for "waves of illegal aliens streaming across our borders, joining gangs and forcing our families to live in fear," which Senator Robert Menendez, the chair of the Democratic Senatorial Campaign Committee (DSCC), condemned as "the most overtly racist ad of this campaign season." Majority Leader Reid, meanwhile, needs a strong turnout from Nevada's large Hispanic voting bloc to fuel his re-election bid.
But first there is the argument today in a court in San Francisco, and the legal stakes are just as high as the political stakes. Indeed, the legal battle is a microcosm of the ideological battle being waged across the country between tea party advocates and the Obama Administration and its progressive supporters. Arizona, with the backing of the Tea Party, argues the federal government is both ineffectual in securing the borders and over-reaching in trying to limit the state's ability to step in with their own border security measures.
The Obama Administration counters that Arizona's law directly conflicts with "a comprehensive framework that governs entrance and admission into the United States by foreign nationals, the consequences of illegal entry, and the procedures for removal and deportation of aliens from this country." President Obama has recognized that the country's immigration system is "broken" in some respects, but the answer, he argues, is for political leaders across the political spectrum to pass legislation at the federal level aimed at both securing the borders and dealing fairly and humanely with the more than 11 million undocumented aliens already living in the United States.
The tie-breaker in this legal battle should be the text of the United States Constitution, which provides that Congress shall have the power to establish "uniform" rules for immigration and naturalization and gives Congress broad and exclusive authority to define citizenship. As explained in a brief submitted in United States v. Arizona by my organization, Constitutional Accountability Center, this unique textual commitment to having a "uniform" federal rule in this area should mean the Obama Administration, which prevailed in the district court in preventing the most troubling aspects of S.B. 1070 from going into effect, should prevail in the appeals court as well.
The final piece of drama unfolding today will be on the bench itself. The announced panel could be described too simplistically as either (1) favorable to the United States because two of the three members of the panel -- Judges Richard Paez and Carlos Bea -- are of Hispanic descent or (2) unfavorable to the United States because two of the three members of the panel -- Judges Bea and John Noonan -- were appointed by Republican presidents.
But the reality is that the most sympathetic judge on the panel from the perspective of the United States may be Judge Noonan, an appointee of President Ronald Reagan, who several years ago wrote a terrific book entitled Narrowing the Nation's Power: The Supreme Court Sides with the States, which was deeply critical of rulings by the Supreme Court that too aggressively limited the constitutional powers of the federal government.
It should be fascinating to watch the proceedings unfold.