ADDED: Gabrielle Giffords was the member of Congress who had the honor of reading the First Amendment when the Constitution was read on the House floor January 6th. Video.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
And judging from the comments to this post, people are already trying to score political points. Well, they kind of telegraphed this strategy, didn’t they? Remember Bloomberg making a fool of himself by blaming the Times Square bombing on the Tea Party? How about waiting until we actually know something, this time? That’s likely to be soon enough.
Lyle Denniston reports on the oral argument today in Arizona Christian School Tuition Organization v. Winn. This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Man of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. Denniston begins his description with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.
This case has a substantive Establishment Clause issue — whether government is subsidizing religion —and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state.
The lawyer defending the Arizona program said it was like tax deductions. People take tax deductions for their contributions to religious organizations all the time. What's different about tax credits; The lawyer arguing against the program "said that the money that is involved in the Arizona program is money raised by a tax; without a tax, there would be no tax credit."
If we view the tax credit as coming from the state's money, amassed by taxing, then the taxpayers who brought the suit probably have standing. But does that also answer the Establishment Clause question? Private citizens decide whether to contribute to a fund and pick from the qualified funds, not all of which exclusively fund religious schools, and the children getting the grants are choosing which school they want to go to. So there are 2 levels of private choice. And the definition of the funds is neutral and not religion-based.
Here's the complete transcript of today's argument.
"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler....
Kneedler's response was that Arizona acted "in, frankly, an unprecedented and dramatic way."
"It is not for one of our states to be inhospitable in the way this statute does."
I'm not looking at the whole transcript, but I'm puzzling over this idea of preemption that depends on the degree of drama.
Kneedler also cited "very concrete harms, very substantial foreign policy concerns," which gave Arizona's lawyer, John J. Bouma, the opportunity to zing: "Foreign outrage doesn't make the law preempted."
When the lawsuit was filed, my main question was whether it would serve the political interests of the Democratic Party:
Assuming it's not legally ridiculous, is it politically wise? To make it work legally, won't [the Obama administration] have to own pathetically weak enforcement as a deliberate and important policy? Won't they have to be very clear that Arizona must shut up and accept the current situation? Who will get better political leverage out of this lawsuit — those who favor stronger enforcement of immigration law or those who favor leniency?
While the weak economy dominated the official agenda at the summer meeting here of the National Governors Association, concern over immigration policy pervaded the closed-door session between Democratic governors and White House officials and simmered throughout the three-day event.
At the Democrats’ meeting on Saturday, some governors bemoaned the timing of the Justice Department lawsuit, according to two governors who spoke anonymously because the discussion was private.
“Universally the governors are saying, ‘We’ve got to talk about jobs,’ ” Gov. Phil Bredesen of Tennessee, a Democrat, said in an interview. “And all of a sudden we have immigration going on.”
He added, “It is such a toxic subject, such an important time for Democrats.”
Did the NYT use the word "anonymously" as some kind of anti-Bredesen joke? He's such a nonentity! Or were there 2 other governors who were ass-cover-y enough to demand anonymity as they breached the privacy understanding, and the NYT mentioned them just before quoting Bredesen to make Bredesen look indiscreet/bold? Or — this is awkward but most likely — were the 2 anonymous governors the ones who revealed that there was a lot of anxiety and simmering at the private meeting, and Bredesen's quote, technically, doesn't refer to the meeting. It's just his direct expression of the anxiety that was also expressed at the meeting.
(The Althouse blog, making reading the New York Times more annoying than it would be if you slogged though it alone. That's how I try to help — by heightening annoyingness. I hope you enjoy the pain.)
Meanwhile:
The lawsuit contends that controlling immigration is a federal responsibility, but polls suggest that a majority of Americans support the Arizona law, or at least the concept of a state having a strong role in immigration enforcement.
Republican governors at the Boston meeting were also critical of the lawsuit, saying it infringed on states’ rights and rallying around [Arizona Governor Jan] Brewer, whose presence spurred a raucous protest around the downtown hotel where the governors gathered.
They had to throw in that "raucous protest," didn't they? Was it, like, one guy? Because I notice there isn't a word about the size of the protest. Yet the polls only "suggest that a majority of Americans support the Arizona law." Why "suggest"? The polls I've seen show strong support for the law. Perhaps even raucous support.
“I’d be willing to bet a lot of money that almost every state in America next January is going to see a bill similar to Arizona’s,” said Gov. Dave Heineman of Nebraska, a Republican seeking re-election.
But the unease of Democratic governors, seven of whom are seeking re-election this year, was more striking.
“I might have chosen both a different tack and a different time,” said Gov. Bill Ritter Jr. of Colorado, a Democrat who was facing a tough fight for re-election and pulled out of the race earlier this year. “This is an issue that divides us politically, and I’m hopeful that their strategy doesn’t do that in a way that makes it more difficult for candidates to get elected, particularly in the West.”
According to the Washington Post, that assertion is at the core of the federal government's lawsuit challenging Arizona's new immigration law. So... the federal government has massively failed to deal with the problem of illegal immigration, but at least the failure is spread fairly equally among the states. Even though Arizona may only want to take responsibility for its its own problem, it can't do that without referring the cases to the federal government and straining and unbalancing federal resources. The courts are supposed to buy the paradox: Because the federal government can't do very much about a problem — or chooses not to do much — an individual state can't act either, no matter how bad things get within that state.
But let's think this through. I'm just trying to grasp what the argument is, so discuss this with me. Brainstorm. Argue. Consider this: The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).
It will be interesting to hear how the lawyers for the federal government make their argument. Assuming it's not legally ridiculous, is it politically wise? To make it work legally, won't they have to own pathetically weak enforcement as a deliberate and important policy? Won't they have to be very clear that Arizona must shut up and accept the current situation? Who will get better political leverage out of this lawsuit — those who favor stronger enforcement of immigration law or those who favor leniency?
Here's the story, about a mural that some citizens complained about because it depicted "a black guy" or 2.
I'd like to see a "before" picture, showing the entire mural, because there's some complexity about what it meant for the artist to be told to "lighten" the faces in the painting. The school officials said "to make the kids look like they were 'radiating with happiness,'" so there might be some issue of them conveying the wrong mood. "Lighten" is an ambiguous word — lighten up! — but it's also highly inflammatory to say "lighten" with respect to the skin tone of the faces in the mural.
And then there's City Councilman Steve Blair who had — he's now fired — a local radio talk show, who's been saying things like: "I disagree with the whole perspective that you would have a black guy painted on two sides of that building when the history of Prescott never had a culture issue." You do now.
Speaking of painting, Arizonans are being painted in the media as racists. With the hot national issue about immigration enforcement, any little thing like this will be picked up and used to propagate the meme. You may think you've got a local issue and be willing to engage in loose talk and feel sure you're not really a bad person, but you will look like hell when it's picked up nationally. I've seen a lot of bad murals around town, using big looming faces to convey "progressive" political messages, and I can imagine someone who wasn't a racist at all bitching about them in words that would look quite awful quoted in the national press.
I deplore racism — don't we all? — but can we also talk about the atrocious murals that get slathered onto the walls of our towns? The "diversity" theme is so common in these monstrosities, and I'd hate to see accusations of racism work to silence criticism of artwork that needs to complained about.
IN THE COMMENTS: lemondog links to what I think are pre-alteration photos of the mural, and it's hard to detect a surly, hostile, or aggressive look on the faces. They are already "radiating with happiness." How ecstatic do you want kids to be about going green? I dislike government propaganda murals (and anti-government propaganda murals), but the idea of lightening the faces is bad.
It's political theater, of course. But wouldn't the show work better if the script weren't circulated to the press in advance? Why not create the sense that there will be an actual meeting — a vivid exchange of ideas culled from real-life experience in different cities across the nation? Then afterwards, deliver what seems to be a surprising consensus that the new law will drive a wedge between the community and police and damage the trust that officers have worked to build over many years.
Where's the theatrical magic needed to induce the suspension of disbelief?
In Arizona, there is some racial profiling criteria in order to enforce the law that it's against any sense of human rights; and, of course, is provoking very disappointing, uh, things -- or very disappointing opinion -- in Mexico and around the world, even here in America. So to introduce this kind of elements, especially racial profiling aspect that are attempting against what we consider human rights, it's the principle of discrimination which is against the values of this great nation.
I wonder what those percentages would be if the President and the political elite had not pressured us to think the Arizona law was outrageously racist.
The law prohibits the teaching of any classes that promote “the overthrow of the United States government,” “resentment toward a race or class of people,” “are designed primarily for pupils of a particular ethnic group” or “advocate ethnic solidarity instead of the treatment of pupils as individuals.”
Says an Arizonan named — to the NYT's delight? — Mr. White.
[The new Arizona law] gives the local police broad powers to check documentation “when practicable” of anyone they reasonably suspect is an illegal immigrant....
What will be seen as constituting reasonable suspicion? How will it be possible not to unfairly burden all the Hispanic citizens?
“This law might kick some of these immigrants out,” said Mr. Lowis, 76.... “They vandalize the golf course, throwing flags in the ponds. Burglaries. There are too many immigrants. I get tired of seeing all these people standing on the corner.”
Such sentiments propelled the bill through the Republican-controlled Legislature, with supporters listing well-publicized cases in which illegal immigrants committed rapes and shot and killed police officers....
The linked article is called "Growing Split in Arizona Over Immigration."
No Democrats in the Legislature supported the bill, and only one Republican voted against it.
While those opposed to the law are making the most noise....
No details in this article about that.
... the quiet support can be found here, though some people are uneasy about being cast as anti-Hispanic and several people interviewed declined to be named out of concern they would be thought of as prejudiced.
“I don’t want people to be afraid to come,” said Pam Sutherland, who is a window manufacturer and a fan of the crime sweeps but is also concerned about the state’s image. “I just want them to do it legally.”
For many, though, support for the law comes down to a way to vent frustration that, in their view, the federal government has not done enough to control immigration — particularly in a state on the border where reports of drug busts, houses overcrowded with illegal immigrants and people dying in the desert trying to get here fill the airwaves.
So where's the "growing split"? I don't get the headline, and I sense the NYT's frustration looking for evidence of anti-Hispanic attitudes. Where is the discord? It seems like ordinary people are struggling with a serious problem and the ethics of solving it. (The 2 political parties are, of course, acting in accordance with their perceived political interests.)
Says Glenn Reynolds, citing Article IV, Section 4 of the U.S. Constitution. ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.")
Not sure how that would play out, but it would make an interesting law review article. And a fun oral argument.
I'm pretty sure how it would play out. The courts would apply the political question doctrine and say that Article IV, Section 4 is a "textually demonstrable commitment" of the question to Congress and the Executive. It is for them and not the courts to say what constitutes an "invasion" and what protection is warranted. Even though it would not be a lawsuit against the federal government, attempting to get a court to compel it to act — it would only be a justification of the state's acting in its own defense — the courts would refuse to interpret and apply that provision of the Constitution.
UPDATE: Glenn fights back on the political question doctrine. He connects Article IV, Section 4 to Article I Sec. 10. ("No State shall... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.")
Arizona is not — yet, anyway — engaging in war, but it’s clear from this language that it’s constitutionally empowered to do so when invaded, even if the federal government does nothing (and perhaps even in the face of federal objection). Arizona’s legislation is passed in response to armed people coming across the border and killing Arizonans, which sounds rather like an invasion. If that’s the case, then lesser responses to invasion are, arguably, permissible as well in the face of federal inaction. What the courts will do with this is, of course, uncertain (and likely not tied very closely to the actual text of the Constitution!) but it’s certainly not a frivolous argument.
An immediate military response to a sudden invasion that "will not admit of delay" is clearly distinguishable from the long influx of migrants to which the state has responded with a stringent policy of requiring and checking papers and deporting people. Arizona has adopted its own immigration policy, because it doesn't like the policy the federal government is following. But the federal government has complete power over immigration. This "invasion" concept is offered as a work-around to that power.
I think that if the Arizona policy were challenged and Arizona argued it had suffered an invasion that the feds wouldn't deflect, that the courts would say: It's not for us to decide what constitutes an "invasion." Congress and the Executive have already made their decision about that, and the Constitution makes that the final answer. As they say in political question doctrine talk, there's "the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government... an unusual need for unquestioning adherence to a political decision already made... [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question."
At that point, the court would be back at the original barrier to the state's law: the exclusive federal power over immigration.
Even before she signed the bill at a 4:30 p.m. news conference here, President Obama strongly criticized it....
Saying the failure of officials in Washington to act on immigration would open the door to “irresponsibility by others,” he said the Arizona bill threatened “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.”
What is irresponsible and unfair about what Arizona did?
The law... would make the failure to carry immigration documents a crime. It would also give the police broad power to detain anyone suspected of being in the country illegally. Opponents have decried it as an open invitation for harassment and discrimination against Hispanics regardless of their citizenship status.
