Mexico’s Amicus Brief and the Obama Administration

By Chad Burchard | November 17, 2010

Presidents Felipe Calderon and Barack ObamaAttorney General Eric Holder

Back in May, almost two months before the Justice Department filed its complaint against Arizona over S.B 1070—the state’s much publicized anti-illegal immigration law—the ACLU, NAACP, MALDEF and various other organizations filed a class action lawsuit on behalf of several individuals, unions, and religious groups seeking to overturn the Arizona law. [14 organizations, 10 individuals file suit over Arizona’s immigration law, By Alia Beard Rau, The Arizona Republic, May 18, 2010]

Mexico caused a bit of stir when it filed an amicus brief supporting the plaintiffs in this earlier litigation, and last month it returned to the headlines again when it sought to file the same brief with the Ninth Circuit Court of Appeals, which is currently hearing Arizona’s appeal from Judge Susan Bolton’s July ruling on the Justice Department’s lawsuit. The brief was joined by no less than ten other Latin American countries: Argentina, Bolivia, Brazil, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay, Peru, and Chile.

Arizona Governor Jan Brewer attacked what she described as an attempt by foreign governments to “meddle in a domestic legal dispute.” [Brewer opposes foreign countries’ participation in appeal, By Alia Beard Rau, The Arizona Republic, October 5, 2010] Accordingly, Arizona moved for permission to file its own brief urging the court not to accept the Mexican amicus brief, but the Ninth Circuit denied that motion.

It is common practice for courts to accept amicus (“friend of the court”) briefs from those who, though not a party to a legal dispute, nevertheless have an interest in its outcome. The Ninth Circuit’s decision here would thus not normally cause much controversy.

However, as everyone knows, Mexico is not just any interested observer, and it’s worth taking a look at what its brief has to say. Like Obama’s Justice Department, Mexico argues that only the federal government has authority to set immigration policy, and it laments that “Arizona’s unilateral action burdens Mexico enormously by forcing its officials and citizens to respond to divergent requirements imposed by the different divisions of the U.S. government.”

It’s unlikely that Mexico’s opposition to the law is motivated by concerns about the integrity of American federalism. While its brief apparently recognizes the right of the U.S. government to regulate immigration, Mexico has been quick to attack the feds whenever it has dared to exercise that right in the past.

In 2007, when the Bush administration took some very moderate steps toward greater immigration enforcement, Mexican President Felipe Calderon attacked what he called the “unilateral” actions of the U.S. government, declaring that they “exacerbate the persecution and the vexing treatment against undocumented Mexican workers.” [Mexican President Assails U.S. Measures on Migrants, By James C. McKinley Jr., New York Times, September 3, 2007] The truth is that Mexico opposes any American attempt to halt illegal immigration, whether by a state or the federal government. Indeed, among the reasons Mexico offers in its brief for opposing the Arizona law is that it could derail efforts for “comprehensive immigration reform”—i.e., amnesty.

The brief that Arizona asked to submit to the Ninth Circuit contains some quotations from a declaration made by former U.S. Ambassador Otto Reich—an expert on Latin American affairs—that merit some perusal. Ambassador Reich notes that “the ultimate desire of Mexico is complete amnesty” and that “it is not the Arizona law that Mexico objects to, it is the limitation on the ability of its workers to cross the border at will, with or without permission of the U.S.”

The Obama administration has been very sensitive to Mexico’s concerns. Obama’s Justice Department admitted as much in the complaint it filed against Arizona, which alleged that S.B. 1070 would “interfere with vital foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries.” The supporting brief notes that “Mexican President Calderon has publicly stated that he views S.B. 1070 as undermining the popular goodwill toward the United States.”

The Justice Department’s brief also cited a declaration made by Deputy Secretary of State James Steinberg, which fretted that S.B. 1070 “necessarily antagonizes foreign governments and their populations, both at home and in the U.S., likely making them less willing to negotiate, cooperate with, or support the United States across a broad range of important foreign policy issues.”

Steinberg notes that “[t]he Mexican President, Mexican Cabinent Members, the Mexican Congress, and opinion makers in Mexico all have reacted strongly in response to the [Arizona] law” and goes on to cite opinion polls showing how deeply unpopular S.B. 1070 is among the Mexican public.

Yet while the law may not be popular in Mexico or other Latin American countries, polls consistently show that it is very popular in the U.S., and those who hold on to the quaint notion that the American government should take its cue from Americans, not other peoples, would be justified in raising an eyebrow at so much apparent concern for foreign opinion.

In the end, the only thing that really ought to matter is what the U.S. Constitution has to say, and as many (myself included) have pointed out, the legal precedent supporting the law is quite substantial. The decision to sue a state for passing a law is not one to be taken lightly. Whatever else can be said about S.B. 1070, it was the product of the democratic process. The people of Arizona, through their elected representatives, made their voice heard. The President has the power to conduct foreign policy, but that does not give him the power to strike down otherwise constitutional state laws.

Let us hope that the President chose to sue Arizona because in his heart he really does believe that the law is unconstitutional, and not because he feared that failing to do so might lessen his popularity abroad.