Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. Joining me tonight are Mary Jo Pitzl of "The Arizona Republic." Howard Fischer of Capitol Media Services. And Steve Goldstein of KJZZ radio. The U.S. Supreme Court upholds Arizona's employer sanctions law. Was it -- was this much of a surprise at all?
Mary Jo Pitzl: No, I don't think it cames a surprise to anybody. Even the folks who opposed the law. It was upheld by the ninth circuit court of appeal, in an earlier go-round by a state court. And it's a win, for people such as Russell Pearce, who was a sponsor back in 2007.
Howard Fischer: And in fact the business community put a little happy face on it, saying, well the law’s already in effect, and there's only been a company of companies charged and that shows it's being enforced responsibly and as long as they use the e-verify system, they'll stay out of trouble but there was no question -- the questions raised at the court last fall to the state, why do you see a preemption here? The law says, federal immigration reform act states may not impose civil or criminal penalties but then it says except for licensing and similar laws. Justice Roberts said what part of licensing don't you understand?
Ted Simons: Well, but Steve, Justice Soto mayor said that's after you've been convicted or found out or whatever the case may be, by the feds for violating immigration laws.
Steve Goldstein: But the key thing is the dissenting side. The logical argument it -- it's not going to matter in the long run. The 5-3 decision keeps it going.
Howard Fischer: This was what they call a facial challenge. Is the law as read constitutional and the courts said, 5-3, yes, it is. But you can get an as applied challenge. And a company can say procedures weren't followed and rights weren't obeyed and the adjudication of the employee being illegal, you get a whole new bite of the apple.
Ted Simons: What about 1070? Many thought this would be a harbinger of some kind to 1070 and now that the ruling came out, we heard the majority had to say, a lot of folks aren't sure.
Mary Jo Pitzl: It's a mixed bag. Unpredictably. The employer sanctions law was upheld because there's a part that says states can impose restrictions on licensing. There isn't that detailed exemption that applies to 1070 which is a much broader law and can people even be in the country illegally. And that's -- where the mixed bag is. But proponents of 1070 take a lot of heart from this and say we have got one win and ginning up for the other one.
Howard Fischer: The applicable word is "gin" as in they’re sucking down a bunch of gin as if they think it's going to help them. These are two separate issues, as Mary Jo points out. If the court had said there's preemption under federal law, 1070 would be dead. This one is not as clear, you've got a specific law. Russell Pearce argument says, well in the case of 1070, we have an expressed authority as the state to enforce federal law and, therefore, this should go along. That's exactly what a federal judge said no to. That’s exactly what the ninth circuit said no to and I don't know what makes them believe particularly on a injunction, the Supreme Court is going to bother, oh, we'll put this law on hold.
Steve Goldstein: One thing the people have spoken to, when it comes to 1070, the Supreme Court justices may look at it in terms of defense in some form. Whether -- a border security factor and don't want to get involved in what the U.S. Justice Department may be doing, the Defense Department might be doing. But the business license, there's that carveout, they're not going to put the U.S. in danger by doing this.
Howard Fischer: What worked in favor of the state now, the sort of conservative approach to the law, what is the plain language of the law, will work against the state in 1070. This is a conservative court. They're not going to read into it the right of the state to punish people under Arizona law for looking for work in Arizona. Not going to happen.
Ted Simons: Real quickly, as far as how knowingly -- I think you referred to this earlier and how much evidence is needed to pull a license. What happens to the business community right now?
Mary Jo Pitzl: Well, probably nothing. I mean, for those who aren’t doing e-verify, they might want to double check and get that going, we've only had two prosecutions in the whole state since this thing took effect in January 2008. So there's not a lot that's going to change.
Howard Fischer: The point about e-verify is, if you use it, it's an online system, I've got so and so, a new hire, here's the social security number and if it comes back positive, you have an affirmative defense. So if somehow, if the person turns out to be illegal, wait, here's the printout and you can't say I've done it knowingly. As Mary Jo points out, if, in fact you have not bear bothered to do that or just looking at the little green card here, then you've got a problem.
Steve Goldstein: Ted, one other point I want to make, I spoke to a Stanford law professor and looks at from the legal and business point of view, say things like e-verify might be good for businesses and don't want the hassle and may not intentionally profile, but turns out that way, if I hire that person that doesn't look illegal --
Ted Simons: That is what the dissenters were saying is, well it’s an unintentional, intentional, of course, you will, it does become a chilling effect for certain folks.
Howard Fischer: And Justice Roberts looking at the descent says there's plenty of laws against discrimination here, and this is a knowing violation.
Steve Goldstein: Conscious discrimination, it may change business because people think I don't need the hassle right now.
Howard Fischer: But that's the point of using e-verify, it doesn't matter whether the person is white, black, blue or turquoise.
Ted Simons: You say I did e-verify. I'm covered.
Mary Jo Pitzl: There's my slip and there we go.
Ted Simons: Let's go to the medical marijuana thing, Steve. The state today -- basically asking a federal judge, tell us how we can protect ourselves from ourselves?
Steve Goldstein: Clarify this measure that was passed by voters in November and it all started in essence, according to attorney general Tom Horne, from a letter the U.S. attorney Dennis Burke said to Will Humble of the State Department of Health services, saying from a letter, the federal government doesn't say medical marijuana is legal, regardless of what Arizona says, we'll keep our eyes open. But Dennis Burke says, the interpretation by Governor Brewer and also attorney General Horne it's off saying I didn't say I'm going after everybody. But if you’re a state employee following state law, you don’t need to worry, and the attorney general and the governor decided we need to worry.
Howard Fischer: But what concerns me about this, not going to court and seeking clarification. Or even that the state is going to court and saying our voters passed this, we want to mount a defense. They're going to court and saying we're not going to take a position, but tell you what, we'll give you two choices judge. You’ll love this, you can either decide that the Arizona medical marijuana act complies with federal law and should be implemented which it doesn't, we know that, or -- or whether the medical marijuana act should be declared preemptive in whole or part because of a irreconcilable conflict with federal law which becomes a excuse for the governor to say, well gee it wasn't my fault. I opposed prop 203, but I doesn't do it.
Mary Jo Pitzl: Isn't there a echo here, the reason we have a voter protection act in this state is because of the state's first go-round is medical marijuana in the '90s and the governor and the legislature and the county attorney at the time had a problem and said we're not going to implement it. They put barriers in place and voters came back -- or the supporters of medical marijuana came back and put the dang thing back on the ballot and included the voter protection act which means what we say. You cannot undo the will of the voters without the supermajority vote. Etc.
Ted Simons: Steve talk about this letter, we've had Dennis Burke on the show. Seems like he's saying, yes, this is not in accordance with federal law. But we're not going after sick people or folks who are using state law the way it was intended. We're going after cartels and big boys. Isn't that what that letter says?
Steve Goldstein: That's what Dennis Burke said it says. There's a 2009 memo. And basically said the Obama administration is not going to go after people who use medical marijuana, but Dennis Burke is saying the same thing. We're not going after but we're also not going to close our eyes to it.
Howard Fischer: Here's the other half of the problem. The Burke letter then goes on to say, however, large commercial operators, the people selling it for profit, who are transporting it, we'll vigorously enforce. In order to get the marijuana to smoke it, you've got to buy it somewhere.
Ted Simons: So, basically, it's illegal but it's shall I mean, it's -- there's always an "but, it's illegal."
Mary Jo Pitzl: Sure, that’s where it ends at the end of the day. And that raises a question, the attorney general doesn't want to see you harmed necessarily by this, but where are they going to get medical marijuana, of course, it can't be supplied. You can't bring it across state lines, so effectively, this is seen as a way to put a freeze on the program even without a lawsuit.
Ted Simons: Either that, or turn every operation into a mom and pop operation. Just don't get too big, in other words.
Howard Fischer: The law has interesting provisions. First, because the proponents were unsure that the state would cooperate, the cards for being a qualified patient say if you've turned in your card to the state and the state hasn't issued it in 45 days, your application becomes your card. The other thing, it says, if there's no dispensaries within 25 miles, you get to grow your own. Where the seeds come from -- magically appear. Like Jack and the beanstalk. But it's going to set up a system where people are going to have cards and everybody is going to grow medical marijuana in their yards.
Ted Simons: We had the attorney general and governor both saying that the Burke letter is threatening to state employees and Dennis Burke saying they're grandstanding. This has gotten political fast
Steve Goldstein: I'm not sure if Governor Brewer has anything against Burke for having worked for Napolitano. But the idea, what it comes down to is you've got Tom Horne saying we don't want to thwart the will of the voters even though he and the governor were against it to begin with it and this does thwart the will of the voters.
Howard Fischer: I don’t think it’s going to get that far. Judges don't like two parties coming in and saying, Your Honor, tell us what you think. If this weren't a live case, if I were arrested and I go in and say my defense is this, the judge has to decide does the state law defend me. This is an academic question, I say the chance 50/50, this gets thrown out of court.
Ted Simons: It could be interesting because it could be a long legal delay. It may not, we'll mind that out. Mary Jo, the idea of AHCCCS cuts. We had him Hogan on the show, talked about that. Basically says, you can't do that.
Mary Jo Pitzl: This is a key part of the state budget passed in April to put a freeze on the state's Medicaid program for people who earn up to 100% of federal poverty level. They’re hoping they can save by doing this and along comes Hogan as he's been promising for two years, saying, no, you can't do that, because this population is protected by -- the voter protection act and this thwarts the will of the voters. So they've taken this straight up to the Supreme Court and asked them to say -- undo it.
Howard Fischer: Here's the fun part. The Supreme Court issues an order, tell you what, we'll hear the case in September.
Ted Simons: Right.
Howard Fischer: Three months after the changes take place. Tim has to figure, does he go to superior court and seek some sort of injunction? We've talked about this on the show before, the questionable language, when voters approved this thing, funded by tobacco taxes, the state's share of the tobacco settlement nationwide and quote other available sources as appropriated by the legislature of federal funds. The governor says we're a billion in the hole, there are no other available sources. Tim says you just increased the budget for the department of corrections and $8.3 billion in revenues, you couldn't find $200 million?
Ted Simons: You mention the Arizona commerce authority spun out of whole cloth.
Mary Jo Pitzl: We have a temporary sales tax that did not exist until a year ago. There's another source of money. They're using to back-fill education and healthcare programs. It's really not filling in much on healthcare --
Howard Fischer: Lawmakers didn't like being told what to do. They're funny --
Mary Jo Pitzl: A lot of this legal argument will turn on that language. Are there available funds or not?
Steve Goldstein: I think what strikes me is when the budget was coming out, this was plan A. The AHCCCS cuts was the plan A. If, in fact, a lawsuit changes thing, the plan B, where does it come from?
Mary Jo Pitzl: We've already heard, it's education.
Ted Simons: I asked Tim Hogan, what if you're successful. The cuts will have to come from somewhere and the lawmakers say don't make us do this again. Yes, but there are all kinds of ways that the state can find more money. I've heard racinos talked about again. Now wouldn't that be a wonderful magic bullet. The provider tax that the healthcare community was slow to come around to as a whole, and agreed to, but they did. But they did tax the -- and you get reimbursed by the feds for that. So there are ways to do that without stop our education system at grade three.
Ted Simons: Are we seeing a recurring theme here with the voter protection act -- getting around some of this stuff?
Steve Goldstein: I think a lot of people don't like the voter protection act.
Howard Fischer: Look, same game, unwilling to put it back on the ballot. Take a look at the clean elections matter. They're not putting on ballot, are you willing to appeal clean elections, but a constitutional amendment which says no taxpayer funds for politicians. It's all a game.
Mary Jo Pitzl: This I think will stoke the debate about the voter protection act. Once it's voter protected it's protected forever unless you can get a three-quarters vote of the legislature to change it. There have been proposals to say maybe we should tweak this and say, every 10 years go back to the voters, times change and now what do you think.
Ted Simons: The idea that this is what you thought then, this is how you thought now. And careful what you ask for because it may come boomeranging the wrong way.
Steve Goldstein: The voter protection act is great unless the legislature needs to find money because there will be cuts other places. This is one of the things where in good times, the voter protection act is ok. Bad times, not so much.
Ted Simons: The governor wants to extend unemployment benefits because our jobless rate fell, so the benefits are in jeopardy. Trying to push lawmakers -- are they pushing back?
Mary Jo Pitzl: The problem is that Arizona could qualify for what they call a three-year look back and calculate whether the state is entitled to more unemployment benefits over a three year period rather than a two year period. So the governor about a week and a half ago said I want to help these people. It’s about 15,000 folks who would qualify for these people. And she's getting pushback from the legislature. The house is somewhat open to it, the senate is like, no, I think the majority whip told me that they think it's a stupid idea.
Ted Simons: Stupid was the operative word.
Howard Fischer: The issue is what we're talking about the last 20 weeks. The state provides 26 weeks of unemployment. Paid for by employers on a tax. There’s another 53 weeks that the federal government pays for because unemployment’s been so high. Then this last extension is weeks 80-99. And then because the unemployment is so high and the extends, if you do the recalculation, people qualify for the last 20 weeks of unemployment. Folks say, wait, these people are unemployed for two years and couldn't find something? The governor's point is yeah, I understand, the money is coming from somewhere. The federal government, but these are real people who can't find jobs. A 9.5% unemployment rate, means one person out of 11 cannot find work. So that becomes the issue and brings $3.5 million into of federal money into the state. We accept stimulus funds and we're suddenly concerned about the federal budget when we've been sucking stimulus funds all these years?
Ted Simons: A lot of folks think this is a disincentive for people to go out and get a job.
Steve Goldstein: I remember John Kyl said the same thing and got back-hand for saying something like that. I think it comes down to you have a situation where the state doesn't want to spend money in certain ways and when this comes to special sessions governors don't like to call them unless they know they have the votes.
Mary Jo Pitzl: It's not so much academic as philosophical. There are lawmakers who firmly believe at 99 weeks they’re not going to go out and search for a job, to which others say what jobs?
Howard Fischer: The other piece, if you look across the states, we have the second lowest rate of benefits. $240 a week. Only Mississippi pays less. You're supposed to get half of what you are earning but there's the $240 a week cap. So the question is, if you were making $60,000 a year and find a job near there, are you going to sit home for $240 a week which is taxable? I don't know.
Ted Simons: Alright, we’ll keep an eye on that one. What are the odds we'll see a special session?
Mary Jo Pitzl: From what I'm hearing, slim.
Steve Goldstein: Steve, as far as the sheriff's office is concerned and these are stories that seem to change almost on a daily basis, but it's a rough period of time for the MCSO and now employees have been arrested for drug cartel ties?
Steve Goldstein: Ted and I think the most disturbing thing about it, is one of the employees of the sheriff's department is -- I want to say eight months pregnant, but certainly pregnant with the leader of the drug cartel and the sheriff is going to stand up, if they do something crazy like this, they're out. Pardon me, what Paul Babeu brought up in his investigation, who is directing the ship here? It looks bad for the sheriff.
Ted Simons: One of the deputies arrested allegedly set up a shell corporation to launder money, allegedly smuggled humans in his house at one time.
Mary Jo Pitzl: And a member of the human smuggling unit of the sheriff's office. Engaging the very behavior he's paid to prevent.
Steve Goldstein: What's interesting, he got trained in what to look for and then he knew what to look for.
Ted Simons: A 10-year veteran as well. Howie, politically speaking, the sheriff may want to run for senate. We understand, we’ve heard these stories before. Don't pooh-pooh quickly. But the fact is he still thinks he's a viable political operator out there and maybe he is, or is he?
Howard Fischer: Well among some people -- look, the sheriff could be found in bed -- and I may have used this line in the past -- with a dead goat and there will be people who will vote for him. They like the pink underwear and the tent city and the Christmas mall patrols and they see him out there doing stuff. This becomes the drip, drip, drip, as you find out, the sex abuse cases that weren’t investigated because he was doing something else and burglaries in rural areas that aren't investigated and each time it chips a little bit that the. Is there a core who is always going to be there? Yes. Is he electable to a citywide office, I think that's problematic.
Mary Jo Pitzl: And one sign is, he has an opponent for next year. A police officer out of Scottsdale. I forget his name at the moment but he's knowing to challenge Arpaio in the Republican primary.
Steve Goldstein: But I think what strikes me, Mary Jo, even if we look at the sheriff's numbers down, he used to put the polls up on his website which he doesn’t do anymore. He used to have 80% popularity. Now it's less than that. You have to have an available candidate and Dan Saban was a viable candidate, but he clearly was not because they came up with something crazy out of his past, the sheriff will play dirty to keep his office. If he can still stand, he will run and he’s gonna play dirty to win.
Howard Fischer: They're going to take him out of there. Well, we --
Mary Jo Pitzl: Sarah Palin might have room on her ticket.
Howard Fischer:We've done this show for every year, every year that Joe's been in office and he's talked about governor and senate and this and that and the other thing. He loves being the most powerful official in Maricopa County.
Ted Simons: He may not be the most powerful figure in Maricopa County, Howie, because real estate recorded seem to indicate that -- records seem to indicate that Sarah Palin is a resident of the valley. Why?
Howard Fischer: It's hard to say, look, I don't see her running for office here. Why would she give up the massive I income she has to be one of 100 senators? It makes no sense. Governor, she's not eligible. You have to be here for five years before you run for Governor. She couldn't run unless Jan gets her third term. She likes the valley. If you're going to make an investment in real estate, you have Scottsdale and Wasilla, you tell me.
Ted Simons: But what about this idea, you stick around for awhile. I know it's not going to pay anywhere what she's getting right now, but the fact is you're not called senator Palin.
Steve Goldstein: She's a TV star who rarely gets criticized. Once you put yourself out there, you'll get criticized. Arizona is a pleasant place for her points of view. I'm curious about John McCain's legacy.
Mary Jo Pitzl: I think the field's not filling up on GOP side and there's a vacuum there and she pivoted in recent weeks and got a bus tour and the film coming out.
Howard Fischer:I think it's a presidential bid and the more I watch, particularly the film documentary, that was the thing that they're schmoozing with this very complementary film. After the TV show about Sarah Palin's Alaska where she goes out -- "I shot a deer from my front porch."
Mary Jo Pitzl: Can you imagine doing Sarah Palin's Arizona? That could be fun.
Ted Simons: We’ll get to work on that one for a PBS special. Thank you for joining us tonight on "Horizon." Monday on "Horizon" -- Join us for a Memorial Day tribute to America's veterans. We'll visit the Arizona military museum, and we'll talk to a Mesa man about his experience as a Korean war POW. That's a Memorial Day special, Monday at 7:00 on "Horizon." That's it for now. I'm Ted Simons. Thank you for joining us. You have a great weekend!