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The Fight Over Alabama’s Immigration Law Features Increasingly Estranged Allies: Conservative Populists Versus Big Business

Last week, Federal District Judge Sharon Blackburn heard arguments for and against the validity of a new Alabama law that would put the state in the role of enforcer of federal immigration laws.  The Alabama law is scheduled to go into effect on September 1 if it is not enjoined.

One provision of the Alabama law resembles a controversial Arizona law: it authorizes state and local officials to detain persons on suspicion of immigration offenses until their immigration status is determined.  The Alabama law goes further, however, by imposing on state and local government, as well as private actors, the duty to investigate the immigration status of persons they have reason to suspect of not being legally present in this country.

The case before Judge Blackburn was brought by the federal Justice Department on the ground that the Alabama law would “over-enforce” federal immigration policy.  Regulation of immigration is a function of the federal government, the argument goes, and the Alabama law reaches beyond the sort of interstitial assistance that federal immigration law leaves open to the states to provide.

Whatever decision Judge Blackburn reaches, we are likely to see further litigation in the lower federal courts and the U.S. Supreme Court over how much authority states may exercise in the area of immigration enforcement.

The questions that have been raised in the Alabama case, and will be raised in future litigation, are interesting and important, but I do not address them directly in this column.  Instead, I argue below that the fight over state enforcement of federal immigration law reflects what may be a growing rift between two politically conservative constituencies.

Millions of Positions, But Only Two Political Parties

To understand how the immigration battle pits different conservative groups against one another, it may be helpful to locate the issue in the context of American coalition politics.

The American preference for first-past-the-post winner-take-all elections strongly favors a two-party system.  Without proportional representation, third-party candidates will usually have only a perverse effect—drawing support away from the major party candidates whose views are closer to their own, and thus assisting in the election of the candidate whose views are more distant.  In other words, they usually play the role of spoiler.

In our system, whole third parties occasionally emerge, and in the Nineteenth Century, third parties twice replaced one of the two major parties, but we have had no stable period of three parties.  In the modern era, third parties can at best place an issue on the national agenda, where it will then become co-opted by one of the major parties.  Thus, historian Richard Hofstadter’s 1955 observation remains equally true today: “Third parties are like bees:  once they have stung, they die.”

Although only two major parties can be viable in any given period, there are always dozens of politically salient issues, and thus literally millions of possible combinations of views that any one person might potentially hold.  American political parties are inevitably umbrella coalitions of people who hold different views but find that, by binding together, they will be able to support a set of political results that comes reasonably close to their preferences over a range of issues, even as they must make some painful compromises.

For example, a devout Catholic who is pro-life on abortion and categorically opposed to the death penalty may find that a candidate whose views he shares on abortion will disappoint him on the death penalty, and vice versa.  Or, a libertarian who believes strongly in the right to free speech and an individual right to bear arms may likewise find that neither major party supports both of these positions.  Political parties attempt to package combinations of views on various issues in ways that will maximize support, but because the mix of views among the people shifts, so do the coalitions that support the parties.

In the late Nineteenth Century, for example, the Republican Party was relatively progressive on race, while generally skeptical of regulation, earning the support of big business and, to the extent that they were not disenfranchised, African Americans.  Over the course of the Twentieth Century, the Republican Party retained the support of business and commercial interests, but African Americans migrated to the Democratic Party in the 1960s and 1970s, alienated by the Republican “southern strategy” of appealing to white racists.  More recently, the Republican Party has been a coalition of social conservatives and free-market conservatives.

These are over-generalizations, to be sure.  The Democratic Party and the Republican Party both include substantial regional and individual variations.  Southern Democrats can be more conservative than New England Republicans, for example. But on the whole, the parties have been becoming more ideologically cohesive over the last few decades, aided by gerrymandering that creates legislative seats that are safe enough for ideologues, and by national media outlets that serve to consolidate opinion across a range of issues.

The Fracturing Conservative Coalition: Populists Versus Corporatists

But the trend of consolidation for the Republican coalition may be in the process of reversing itself, just as the Democratic coalition of working-class whites and minorities fractured three decades ago to give us Reagan Democrats.  Two recent sets of disputes have revealed fissures between the traditional Republican support for big business and an emerging economic populism.

The first fissure was prominent in the fall of 2008, when conservative Republicans joined liberal Democrats in opposing the initial version of the Troubled Asset Relief Program (“TARP”).  There was a basis for the opposition in conservative ideology: If banks and other institutions receive government bailouts when they are in trouble, the conservative argument went, then their incentives in normal times would be misaligned: Seeing the bailouts, bankers would continue to make overly risky investments, knowing that they would keep the rewards, if rewards followed, but be bailed out if their investments went bad.

That was, and is, a legitimate objection to the phenomenon that came to be known as “too big to fail.”  Interestingly, however, most of the opposition to the bank bailout—on both the right and the left—appeared to be rooted in a different view altogether. People simply resented the unfairness of it all:  The government was spending hundreds of billions of dollars to make whole the very bankers who brought the economy crashing down, even as the ordinary working people losing their homes were given nothing.

Many centrists of both parties nonetheless supported TARP because they realized that the consequences of permitting AIG and other crucially connected financial players to go under would be catastrophic for the whole economy.  And of course, Wall Street generally supported TARP because Wall Street firms would reap most of the immediate benefits.

On the political right, many of the people who opposed the bailouts joined the emerging Tea Party movement, which came to view those bailouts as merely a particularly glaring instance of what the movement saw as a far larger problem:  excessive government spending.  Their perspective again collided with the view of Wall Street in the recent fight over the debt ceiling.

Although many people on Wall Street are politically conservative, and thus favor reducing government spending, they and their protectors on Capitol Hill understood that it was more important to assure the markets that the federal government would never default on its obligations, than to squeeze every last penny of spending cuts out of the leverage that the debt-ceiling impasse afforded them.  Thus, Speaker John Boehner, a traditional big-business conservative, was eager to cut a deal with President Obama.

Boehner was repeatedly undercut, however, by congressional Tea Partiers and other Republicans who feared that supporting a rise in the debt ceiling would earn them a primary challenge from the Tea Party.  Some of the Tea Party-affiliated members of Congress even said that there were no circumstances under which they would raise the debt ceiling.

Here, as in the dispute over TARP, the economic populists on the right were willing to crash the economy to prove their point.  In both cases, the Wall Street wing of the Republican Party prevailed, but just barely.  In the case of the debt ceiling, the eleventh-hour nature of the deal ended up costing the U.S. its S&P AAA rating.

Immigration: Another Front in the Populist Battle with Wall Street

The emerging rift between economic populism and support for big business also shows up in debates over immigration. Consider that former President George W. Bush, whose Administration proposed TARP, was also an advocate for a relatively liberal immigration reform bill.  In this respect, Bush was a moderate, but more saliently, he was doing the bidding of business interests.

Employers generally disfavor harsh crackdowns on immigration, because such crackdowns make it more difficult to hire undocumented workers and pay them low wages.  As a consequence, fights over immigration produce alliances between pro-business groups and civil rights organizations concerned about the undocumented immigrants themselves as well as Latino citizens and legal residents likely to face discrimination as a side effect of cracking down on undocumented immigration.

On the other side, one finds people who fear—with or without good reason—that undocumented immigrants will steal their jobs, undercut their wages, and burden public resources when they and their children use social services.  Such fears can be mixed with bigotry and nativism, although they need not be. People who support stricter immigration laws and stricter enforcement of existing immigration laws often also try to make clear that they welcome legal immigrants.

Immigration fights thus feature roughly the same players as we saw in the battle over TARP and the debt ceiling: On one side we see business interests; on the other, we see conservative populists.

Can Populist Conservatives and Business Conservatives Ever Get Along?

In principle, populist and big business conservatives could reach a modus vivendi.  Consider that, for many years, the big-business/Wall Street wing of the party has accepted the socially-conservative platform favored by the populist wing, even though many in the former group are across-the-board libertarians.  Conversely, social conservatives have worked with their opposite number to promote deregulation and low taxes on the wealthy, even though most social conservatives (like most Americans) are not wealthy.

It is possible that populist and business conservatives will forge a new and stable compromise, but that seems unlikely for two reasons.  First, as the debt-ceiling debate showed, the populists (or at least those who identify with the Tea Party movement) regard compromise as selling out.

Second, the relationship between populist and business conservatives differs from the relationship between social conservatives and business conservatives.  Social and business conservatives could find common ground because neither side cared all that much about the other’s priorities.  Thus, a logrolling agreement was possible.

By contrast, populist conservatives and business conservatives care about the same things—only they are on opposite sides of the issues.  In these circumstances, a stable bargain seems unlikely.  Instead, we are likely to see a battle for the soul of the Republican Party.

The Supreme Court’s Surprising Support for the Populists

Who will win that battle?  It is too early to tell, but one interesting and surprising data point comes from a ruling earlier this year by the Supreme Court of the United States in a preemption case.

Preemption cases ask the question whether federal law “preempts”—that is, displaces—state law.  The issues can be arcane because Congress typically writes laws that preempt some, but not all, state law.  For example, the federal law requiring warnings on cigarettes and cigarette advertisements preempts state laws requiring other warnings, but does not preempt all state lawsuits against the manufacturers and sellers of cigarettes.

Each year, the Court decides a number of important preemption cases, the details of which need not concern us.  The most relevant point is their ideological valence:  The more conservative Justices tend to favor preemption, while the more liberal Justices tend to oppose preemption.

At first blush, that set of preferences may seem surprising.  After all, preemption means that an issue is being taken out of the hands of the state governments, and put in the hands of the federal government.  Yet, in other contexts, conservatives tend to be more solicitous of states’ rights than liberals.  So why, in preemption cases, do the liberals favor state power, while the conservatives favor federal power?

The answer is policy.  In most of the important preemption cases in the Supreme Court over the last couple of decades, states have tried to regulate businesses more aggressively than the federal government did.  A vote for preemption, therefore, is a vote for weaker regulation, and conservatives like weaker regulation (just as liberals like stronger regulation).

Of course, the Justices would surely deny that their policy preferences drive their decisions in preemption cases or any other category of cases.  They are just deciding the cases according to the law, as they see it, they will say.  They probably even mean it, as a matter of their conscious intent.  But the numbers do not lie. With the possible exception of Justice Clarence Thomas (a conservative who sometimes opposes preemption) and Justice Stephen Breyer (a liberal who sometimes favors preemption), the results in preemption cases seem to closely track the Justices’ general attitudes towards regulation.

And that is why the Court’s ruling this past May in Chamber of Commerce v. Whiting is so interesting.  At issue was an Arizona law that suspended the licenses of various Arizona businesses if they are found to have hired undocumented immigrants in violation of federal immigration law.  The Court, led by its conservative wing, found that the Arizona law was not preempted, even though business interests—in the form of the Chamber of Commerce of the United States, a very successful litigant before the High Court—argued that it was.

What explains the conservatives’ rejection of the pro-business argument for preemption in Chamber of Commerce v. Whiting?  Of course, there is a formal legal explanation.  The federal law at issue exempts from preemption state “licensing” laws, and Chief Justice Roberts seized on that language to uphold Arizona’s law.  But the Chamber of Commerce had argued that state laws should only be exempt from preemption if they genuinely involve the standards for issuing, suspending, renewing, and revoking licenses; Arizona’s law, the Chamber contended, used the form of license suspension or revocation simply as a means of imposing stricter penalties on firms that violated federal law, in violation of the core preemption provision.

Was the Chamber’s argument a slam dunk?  No.  But neither was the Chief Justice’s argument that anything that formally involves licenses is a licensing law.  Given this wiggle room, one would ordinarily expect the Justices to follow their ideological druthers, with the conservatives voting for preemption and the liberals voting against preemption.  Yet that is not how they split.

The liberals, whose sympathy for immigrants probably trumped their sympathy for regulation, voted in favor of preemption.  Meanwhile, and more interestingly for present purposes, the conservatives voted against preemption.  The best ideological (as opposed to formal legal) explanation for that decision appears to be that the conservatives on the Supreme Court favor the claims of big business, but they favor the views of populist conservatives even more.

If that inference is correct—and it is admittedly based on only one case—then we may have an inkling of how the current intra-conservative battle will play out.  The conservative Justices on the Supreme Court are part of the conservative elite.  If any group of well-connected conservatives could be expected to favor business conservatism over populist conservatism, it is these Justices.  And yet, they defected to populist conservatism anyway.

That defection may prove unimportant, but it could also be a harbinger of a broader trend on the political right.  In the end, it could even signal the beginning of a larger political realignment, should pro-business groups decide that the Republican Party consistently subordinates their interests to the ideology of the populists.  We are not there yet, but the signs are visible.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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  • Hecalder

    Why is it that as soon as you want to inforce illegal inmigration and detain for appearing illegal you only think latino? That is racist! If that is the case then in Alabama you better detain every single person that lives and crossed your grand State! Because every single person regardless of color! Is ilegal until proven different.. Otherwise you are profiling! Do not be bigots! Whites are illegal since not all arrived as colonist… So make sure if you enforce the law that you do it without prejudice! Otherwise will fill a trillion dollar lawsuit on behalf of every latino.. And latinos come in all colors!! White, brown, black, yellow, red! Take your pick!! Filing a lawsuit on behalf of over 15 percent of the U.S. Population against Alabama!!

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