Stepping back from the ledge, I think the Supreme Court's ruling, and the Obama administration's reaction to it, may open up the possibility of a "Grand Bargain" on immigration reform.
The essence of the Supreme Court's ruling was based on field preemption - the idea that the Federal government has so fully regulated immigration that it has, implicitly or explicitly, excluded the ability of states to regulate in that area (even where there is no direct conflict between Federal and State law).
Which means that Congress can reverse the Supreme Court's ruling with a simple stroke of the pen, by including in a bill provisions allowing States to regulate immigration (in all or only certain regards) and aid in enforcement of Federal law.
And that means that both sides of the aisle now have something significant that they want - and can trade - in the immigration area.
The Democrats - and some Republicans, including superstars like Marco Rubio - want to pass some version of the DREAM Act, giving illegal aliens who meet some criteria for good behavior and contribution to the country a path to citizenship. The Republicans want individual states to have at least some authority to regulate or enforce immigration laws.
Why not tie the two together? Propose a Comprehensive American Immigration Reform and Enforcement Act - call it the CAIRE Act, has a nice ring to it - that:
- Provides a path to citizenship for young adults meeting good behavior/contribution/current employment or education standards who were brought to the country as children;
- Provides a path to citizenship for any illegal alien who signs up for two tours of duty in the U.S. armed forces in times of war;
- Provides a path to permanent residence (but not citizenship) for any other illegal alien who can meet those standards (but not including "currently in school" as a viable alternative; these folks need to show gainful employment), and are in the U.S. as of the date the bill passes;
- Provides that no illegal alien who enters the United States after the date the bill passes can take advantage of option 3, and prevents Congress from granting any such newly entered illegal aliens any path to permanent residence or citizenship other than enlistment in the armed forces in times of war;
- Authorizes states to enforce federal immigration law, including allowing states to commence deportation proceedings in their own right (and on their own resources) in the Federal immigration courts, but which the Justice Department could choose to block by issuing specific orders in individual cases (i.e. no blanket orders - each case must be individually stopped, if the executive branch so chooses);
- Authorizes states to enact criminal penalties of up to 3 years in jail for violation of select federal immigration laws (such as obtaining employment); and
- Provides that the bill is not severable, so any repeal of or court challenge to any of the bill's provisions would invalidate the entire bill, except that a congressional repeal of the "no other newly entered illegal aliens can have a path to citizenship or permanent residence" would repeal only the first 3 provisions of the bill, but would leave the latter three untouched.
I think that could fly, since it gives both parties pieces of legislation that they desperately want. Now, is it wise?
I think so.
The downside of the bill, from a conservative, law and order point of view, is that it contains a limited amnesty. Illegal aliens who do not contribute to society are still deportable, but if you are already here and have kept your head down and worked hard - or were brought here as a child - you will be able to stay. On the other hand, the bill demagnetizes the US by slamming the doors on Amnesty in the future, as any future amnesty bill would immediately wipe out the DREAM Act aspects of the current bill - so no "if you make it here and want to enlist while we're at war, we'll take you" and no "if you were brought here as a child, you can stay". The political consequences of repealing those provisions would make future calls for amnesty less likely, IMO.
More, the provisions regarding state enforcement would be a huge win for the right. States such as Arizona and Alabama would be able to aggressively address an illegal immigration problem that is disproportionately affecting them, even if the Federal government and other states did not see the urgency or have the willingness to allocate the necessary resources. Border states could directly deter illegal immigration and job competition. That would be painful for the left to accept - but the concessions on the DREAM Act provisions would make it worth it.