COMMENTARY | COLUMNISTS | THOMAS ELIAS

High court undermines Bush Latino push

No major Republican politician in modern times has made so determined and successful a bid to win Latino votes for his party as President Bush.

In election after election, he's pulled about half the Hispanic vote in his home state of Texas, about double the best performance any Republican has achieved in California over the last 20 years. His steady romancing of Mexican President Vicente Fox won him even more points with Latinos. He has California Democrats worried about one of their key voting blocs.

But now all that has been undermined by the U.S. Supreme Court, and specifically by a narrow court majority including the justice Bush always names as his personal favorite -- Antonin Scalia -- and Bush's father's most controversial appointee, Clarence Thomas.

No Democratic political advertising has yet made use of the high court's most important ruling in years on the rights of illegal immigrants, a springtime decision severely paring the rights of undocumented workers. But that will come, closer to election time.

In their decision, the five most conservative members of the court held in an Orange County case that an illegal immigrant who was unlawfully fired for union organizing could not collect back pay, as other workers who are legal residents of this country ordinarily can and do in similar cases.

"It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws and encourage future violations," the majority opinion held.

This is plainly a 14th Amendment issue, one concerned with whether laws should be equally applied to all persons. That, of course, is what the amendment's equal protection clause says every person is entitled to.

"Nor shall any state deprive any person of life, liberty or property, without due process of law," the 1873 amendment states. "Nor deny to any person...the equal protection of the laws."

"The amendment does not say any citizen or any legal immigrant is entitled to equal protection; it says 'any person,'" noted one legal scholar.

But the Supreme Court made a distinction between legal residents and illegals, a distinction similar to the one made by California's controversial 1994 Proposition 187, which sought to deny many rights and benefits to the undocumented. Republican support for 187 has cost the party millions of Latino votes ever since, because citizens of Hispanic origin saw the measure as at attack on their entire ethnic group, not just on illegal immigrants.

If Latinos needed a civics lesson to remind them of the importance of the presidential prerogative of appointing Supreme Court justices to lifetime terms, this was it. It's a lesson Democrats will hammer home.

"We will use this," said Garry South, campaign manager for Democratic Gov. Gray Davis.

Fearing this could be the consequence of an anti-immigrant ruling, the Bush administration parted company in the case with its usual business allies and argued for retention of rules adopted by the National Labor Relations Board under ex-President Bill Clinton in 1995.

Bush's lawyers realized the ruling could have sweeping effects going well beyond mere back pay for workers fired illegally. Some labor lawyers worried it might affect even an employer's obligation to pay illegals the minimum wage.

"This dangerous precedent gives employers the green light to hire and exploit undocumented immigrants, violating their basic human rights," said Lt. Gov. Cruz Bustamante, the first Democratic politician to speak out against the ruling. "An honest day's work deserves an honest day's pay regardless of who you are. We cannot and should not go back to the days where workers were stripped of their right to fair treatment."

That's certain to be a theme in Spanish-language advertising by Democrats both this fall and in the 2004 presidential election.

Which means President Bush has been wounded and undermined by the very same justices who put him in office, the same court majority that's normally his ally on almost every issue.


Elias is author of "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government's Campaign to Squelch It." His e-mail address is thomas.elias@sddt.com.

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