National Review just won't let go of baseless attack on Kagan over immigration law brief

Blog ››› ››› ADAM SHAH

We've previously documented that National Review Online's Ed Whelan baselessly attacked Elena Kagan for a brief she filed asking the Supreme Court to overturn one aspect of a 2007 Arizona law dealing with illegal immigration (a different Arizona law from the recently-passed SB 1070 that has been so much in the news recently). Now another NRO blogger has joined in the baseless attack -- Mark Krikorian.

The attack is so ridiculous, we didn't think we'd have to revisit it, but here goes. First, the attackers -- try as they might to gloss over the fact -- have absolutely no evidence that the brief actually has Kagan's input. She didn't sign the brief, is not listed on the brief, and had recused herself from working on the matter by the time the brief was filed.

Second, without additional evidence -- which neither Krikorian nor Whelan has presented -- there's no reason to believe that any particular brief filed by the solicitor general's office represents the views of the lawyers who worked on the brief.

Third, Krikorian misrepresents the substance of the brief filed in the case.

And finally, according to Krikorian's fellow NRO blogger Jonathan Adler, the position taken in the brief is perfectly reasonable and probably correct.

To take these points in order, Krikorian asserts that Kagan "apparently helped draft" the brief in Chamber of Commerce v. Candelaria, a case that asks the Supreme Court to overturn a portion of an Arizona immigration law imposing sanctions on employers who hire undocumented immigrants. Krikorian's language echoes that of Whelan, who talked of "Kagan's presumed role" in the case. In fact, Kagan's name does not appear on the solicitor general's brief because Kagan had recused herself from working as solicitor general because she had been nominated to the Supreme Court before the case was filed. Neither Krikorian nor Whelan cite any evidence regarding how much work -- if any -- Kagan did on the brief before recusing herself.

Furthermore, even if Krikorian and Whelan did have evidence that Kagan worked on the brief, it wouldn't be evidence of Kagan's personal views on the issue. As Kagan said in written questions regarding her solicitor general nomination:

I understand that role [of the Solicitor General] as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients.

In addition, Krikorian falsely states that the solicitor general's brief asks the Supreme Court to overturn the requirement in the Arizona law that businesses use the E-Verify system. Krikorian writes that the brief requested that the Supreme Court "overturn Arizona's 2007 immigration law. That measure required use of E-Verify for all employers in the state as a condition of having a business license." In fact, the brief specifically asked the Supreme Court not to overturn the E-Verify requirement. The U.S. Court of Appeals for the Ninth Circuit had ruled that the E-Verify requirement was not pre-empted by federal law, and the solicitor general's brief specifically asked the Supreme Court not to look at that issue. While the brief argued that the Ninth Circuit ruling was wrong, it also stated:

In what form E-Verify should exist; whether Congress should mandate participation by some or all employers; and whether States and localities should be able to require participation and, if so, in what circumstances all raise "important federal question[s]." Sup. Ct. R. 10(c). In contrast to the questions raised by the employer-sanctions provisions, these difficult and evolving issues regarding E-Verify should be resolved, at least in the first instance, by the political branches, rather than this Court.

Finally, Krikorian's overwrought argument that the brief constitutes a "brazen attempt at subverting democratic governance" is rebutted by Adler. On the Volokh Conspiracy blog, Adler stated that the solicitor general's office's brief "probably came out at the right place." Adler is no liberal. In addition to being a contributing editor at NRO, he is a member of and has been honored by the conservative Federalist Society. From Adler's blog post:

On the substance of the Candelaria brief, I don't think there is anything unusual about the SG's office supporting cert in a preemption case of this sort. There is certainly a keen federal interest in the proper application of federal law that is independent of whether a circuit split has yet developed. Moreover, the likelihood of a circuit split developing is dependent upon the adoption of potentially conflicting state laws, and not all states (or regions) are as likely to enact the sorts of laws that raise preemption questions. So, for instance, southern border states may be more likely to enact aggressive immigration laws than other states. If so, the likelihood of a circuit split ever developing is greatly reduced. As a consequence, I believe it's somewhat common for the SG's office to support a cert grant in preemption cases (at least in preemption-friendly administrations).

I am also more sympathetic than Stewart to the argument that Congress may have sought to balance more stringent enforcement of immigration rules with other interests, and that preemption is one way for Congress to ensure that this balance is maintained. Congress may not want employers to hire illegal aliens, but Congress might also not want employers to be hit with extreme sanctions, such as the loss of a business license, for violating the law. This policy may well be foolish, as Stewart argues, but I don't see why this should factor into the preemption analysis.

The relevant question for the courts is Congressional intent -- whether Congress sought to impose a uniform policy across the nation that precludes both more stringent and less stringent state policies -- not whether Congressional intent was wise. As a legal matter, I think Candelaria is a close call -- it has both an express preemption clause and a savings clause -- but I think the preemption arguments are reasonably strong. The case also implicates broader federalism questions, such as the extent to which the federal power over immigration is exclusive and the extent to which state police powers may be exercised in the immigration context, as suggested by the Supreme Court's decision in De Canas v. Bica. The brief itself may not be the SG office's finest work -- I suspect Stewart is correct it was the subject of political wrangling within the Administration -- but I think they probably came out at the right place.

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