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The Vacuum of Leadership

The opinions expressed by columnists are their own and do not necessarily represent the views of

It was left to the Supreme Court of the United States last week to take on the immigration issue, since the other branches of the federal government have largely ignored it. For years.

Yes, there's been a lot of rhetoric about it all around, even a stopgap here and there when this chronic crisis becomes acute. But no clear, comprehensive solution or even much progress toward it.

Even the best-intentioned proposals never seem to gain much traction, and soon fade away in all the politics the subject invites. And the emotion it inspires.

Like so many problems allowed to fester, this one found its way to the courts. Which is the American Way, however unsatisfactory and unsatisfying the results might be.

Asked to judge Arizona's attempt to control illegal immigration in that state, an attempt scarcely confined to Arizona, the Supremes decided yes, no and maybe.

The high court, like so many Americans, is clearly divided on the issue. Every which way. But the justices recognized they had to do something to fill this vacuum of law and leadership on so central a question -- for any nation. Like who belongs in it.

How summarize this decision, or rather decisions?

Anchored by the swing vote of Associate Justice Anthony Kennedy, and his honest attempt to apply reason of all things to a national problem, the court upheld the federal government's general authority over nationally uniform standards for naturalization and immigration, just as the Constitution makes clear.

There's a reason the phrase "naturalization and immigration" has become common in constitutional law. For there's no reason to doubt the federal government's overriding jurisdiction in all such matters.

This is, after all, one nation indivisible. Or is supposed to be. Even if Mr. Justice Kennedy's application of that principle seemed to reduce one of his fellow justices, Antonin Scalia, to his usual apoplexy when he sees issues as a lot simpler than they are. He's almost made an art of it, going into medium-high dudgeon when ginning out one of his overwrought opinions.

. .

The great advantage of substituting rhetoric for reason is that it frees the jurist from having to think. He need only preen. Yes, there have been great justices who were adept at both rhetoric and reason. Names like John Marshall and Learned Hand come quickly to mind. Alas, Justice Scalia is not one of them, entertaining as he is.

What got Brother Scalia exercised this time was the majority's letting the federal government be the federal government when it comes to enforcing immigration law, rather than leaving it to individual states like, in this case, Arizona.

To quote Mr. Justice Scalia's characteristic flight into the airier reaches of rhetoric in his dissent: "If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state." It's not exactly an original line. It's been used before. Any number of times. It's rolled out whenever a state wants to go its own way rather than recognize the supremacy of federal law.

You might think such questions had been settled definitively at Appomattox, which ended what we in these Southern latitudes tactfully refer to as the late unpleasantness. But there are always those ready to plead states' rights in defense of states' wrongs. As those of us in Arkansas know all too well. (Our memory of the Little Rock Crisis of 1957 still abides.)

This time, thank goodness, the court was not called on to decide whether a sovereign state in a union of sovereign states can go its own way. Rather, the court was called on to decide at which point a state stops just cooperating with federal authority on questions of naturalization-and-immigration, which is not only proper under federal law and even required, and starts displacing federal authority with its own.

Justice Scalia accused the feds of usurping state sovereignty, but just who is usurping whose constitutional authority here?

Writing for the majority, Mr. Justice Kennedy found that the sovereign state of Arizona may have overstepped its bounds here and there by pre-empting federal authority, but not by requiring its officers to check into the identity and legal standing of suspects arrested in matters that might have no direct connection with immigration violations. Like speeding down a highway. But only if the cops have a "reasonable suspicion" that the suspect is in the country illegally.

The law in question has not yet gone into effect, but as Justice Kennedy made clear, if such a law is not enforced fairly, and just turns into an excuse for dragnet arrests, the court may need to rethink Monday's decision. Which is fair enough, reasonable enough -- as rare as a display of reason on this topic may be.

. .

But why should a state like Arizona believe it needs such a law in the first place? Because the federal government seems unable or unwilling to enforce its own laws, leaving such states flooded with illegal immigrants.

There's nothing like a federal government unable or unwilling to enforce its own laws to encourage states to pass their own. Law, like nature, seems to abhor a vacuum, and laws like this one in Arizona are designed to fill it.

This isn't so much a failure of law as a failure of our lawmakers. For over the years the leaders of both parties have failed to come to grips with the nation's broken immigration system and, despite a valiant effort or two, failed to fix it. Abysmally.

The solution has always been there. It goes by the catch phrase, "comprehensive immigration reform," which is easier to say than achieve.

Putting off the problem has only made it worse, and much harder to solve. George W. Bush tried to address it, together with a senator from Arizona named John McCain and another from Massachusetts named Ted Kennedy. But they were unable to overcome the demands and demagoguery on both sides of the immigration issue.

But neither Barack Obama nor Mitt Romney, who seem certain to be their parties' standard bearers this year, seems willing or able to achieve a national consensus. Which means the whole question has been left in abeyance. Not to mention confusion. And neglect. Again.

For why solve a growing problem when it's so much easier to keep fighting it, courting the separate but equally fervid interests on all sides of the issue? Rather than molding public opinion, both these "leaders" seem mainly concerned about how to play the issue for their own political benefit.

What we have here is not just a failed immigration system but a failure of national leadership. A failure of political competence. And a lack of courage.

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