Legal Commentary

It's still early in the process, but I'm wondering if the recent Arizona immigration law will generate some interesting constitutional debate out in public.  Obviously we have constitutional controversies all the time.  But I wonder if this one will be different in that it won't cut closely along the Democratic-Republican divide.  Presumably Democrats will be more or less united in their opposition, but we've seen some major cleavages on the Republican side . 

But the politics itself is not what interests me.  The question is whether the relative absence of strong party cues (at least on the GOP side) is going to provoke some real constitutional debate, instead of simple shouting.  The motives may still be political: Karl Rove is still presumably motivated by his dream of creating a semi-permanent Republican majority, and Marco Rubio is running in Florida (and then there is the issue of his name).  But we've already seen a number of leaders on that side use the law's uncertain constitutional status as an argument.  It makes sense: if you want to oppose something that some people in your party like, there are worse ways to do it than hiding behind the Constitution.

This isn't the first time a constitutional issue has divided parties.  Medical marijuana laws split conservatives along the libertarian/war-on-drugs faction (here and here).  Also, principled proponents of states' rights presumably would like to see other regulatory decisions shifted down to the states, even if the federal government regulates it in ways conservatives generally like.  But those issues don't have the salience of immigration law, especially now, with the Obama Administration thinking about immigration reform. 

I hope this debate happens.  It would be nice, for example, to have CNN feature a conservative constitutional scholar debating another conservative about the law's constitutionality, rather than the standard one-from-the-left vs. one-from-the-right format we've had at least since the old days of the "Point-Counterpoint" segment on "Sixty Minutes."   In my crazier imaginings, that sort of debate might actually start to break down the partisan walls too many of us have helped build up over time and start us focusing on some constitutional common ground.

Aw, on second thought, forget about it.