This is a great article from the Volokh.
First background info.
Before the fuss over Arizona’s immigration law, there was a different fuss over a different Arizona immigration law.
Now the first fuss is coming back to haunt the Obama Administration, the professionals in the office of the Solicitor General, and maybe even Elena Kagan.
That first fuss was over the Legal Arizona Workers Act, a 2006 Arizona statute that (1) imposed state penalties on employers who hire illegal workers and (2) required businesses in Arizona to use E-Verify. (E-Verify is a federal database that checks the names and Social Security numbers of new hires to make sure they match and thus makes it harder for illegal immigrants to get hired using made-up names and numbers.)
I’m all for this type of law, if only for consistency. I’m more for an easier legal immigration process, but I know that won’t happen anytime soon. So if your going to make something illegal, make all parties accountable.
Now for the good part.
The brief takes positions that from a political and policy point of view are hard to square with, well, sanity. In leaving little room for states to address a problem the feds haven’t solved, the brief gets to the left of the Ninth Circuit, which upheld this law. Worse, the SG’s leading argument for why Arizona’s law must fall is that Arizona is being too hard on business owners who hire illegals. No, really. That’s exactly what it says: The law must fall because “[t]he remedies authorized under the Arizona statute for hiring an unauthorized alien— suspension of an employer’s licenses for a first violation and permanent revocation for a second— are far more severe than those authorized under federal law.” The SG argues that employers’ punishment should be limited to $2,000 per worker for a first violation — and only after a knowing violation has been proven. Now, enforcement actions are vanishingly rare because of the “knowing” standard, and an illegal worker’s depressed wages will save the employer $2,000 in a few months or less, so profit-maximizing employers can and will simply scoff at federal immigration enforcement. That’s worth remembering when an administration official says that the immigration system is broken. It’s broken because the administration has filed a brief designed to make sure it stays broken.
As I’ve mentioned before with wedge issues, both parties never want to actually fix the problem. They only want to give half-assed responses that don’t amount to a hill of beans, lest they lose those wedge voters. Although with immigration, I do think the Democrats really really want to “fix” the problem with an amnesty bill, since they will be the biggest beneficiary of all those new Hispanic voters. In light of that, is it any wonder that the Obama administration doesn’t want any immigration laws enforced?
The brief is, frankly, an embarrassment to both Kagan and Obama. Check it out.
This is the least persuasive part of the brief, which is really saying something. When I was a law clerk and reading SG briefs every day, I quickly got in the habit of reading the footnotes first. That’s where the SG buries the most embarrassing weaknesses in its case. So it’s remarkable that this 22-page filing includes a single footnote that covers one full page and slops over in both directions onto two more. And it’s a doozy. In the footnote, the SG admits that the federal government filed a brief inconsistent with its current position just nine months ago (that’s right, under this President).
Another glaring weakness is the fact that, thanks to a sunset provision, Congress actually extended the life of E-Verify a couple of times in 2009 (that’s right, under this President). It’s true that the extension came in appropriations rather than authorizing measures. But when it extended E-Verify, Congress was well aware of the Arizona law and the many similar laws that it inspired (indeed, those laws and the workload they created was one reason why extra funds had to be appropriated). But Congress didn’t overturn the state laws. This seems like a big problem for the SG, which claims that Arizona’s law is inconsistent with Congress’s intent. It’s an even bigger problem than usual because the court decisions the SG is trying to overturn were on the books before Congress extended the program, something the courts usually see as implicitly endorsing the case law as it stands.
My guess is that a substantial part of the administration, probably centered in Justice and in Hispanic-outreach/policy positions, wanted to kill E-Verify too. And I’d further guess that they were beaten back by a combination of Solicitor General resistance (the SG already looks uncomfortably political in seeking review of the uncertworthy first question; excluding the second question is a way to salvage the office’s credibility), political realism (attacking all immigration enforcement measures is not exactly centrist), and DHS pushback (the Secretary has supported E-Verify consistently, to her credit). But I suspect the E-Verify haters extracted a concession, and this language is it. With this language, after all, the federal government’s top lawyers are declaring their view that the Arizona E-Verify requirement is illegal. That expressed view will deter other states from adopting similar requirements, may spur the courts to reconsider their stance on state law, and will put E-Verify in play for Congressional immigration reform bargaining. It’s a sop to the immigration left, and not a small one.
And last: What does all this say about Elena Kagan, woman of mystery and Solicitor General until two weeks ago? Nothing good, I fear. The brief is at best a hacked-together, please-no-one compromise. At worst it borders on the unprofessional. I don’t think Elena Kagan owns every sentence in the brief; she stopped acting as Solicitor General on May 17, and this brief was presumably filed on May 28, when it was released. But on May 17 the case had already been in her office for six and a half months. It’s hard to believe that the brief had not been largely drafted before she left – perhaps even drafted and redrafted several times by contending offices. It’s also hard to believe, given the stakes, that she was not part of the effort to craft a solution to the fraught legal and political issues the case created. No doubt we’ll learn something about that in the weeks to come. There’s likely to be a long paper record of any internal debate, and there may even be people who are willing to talk out of school about the case. Whether it becomes an issue in her hearings is anyone’s guess. If it does, though, she’s likely to look completely out of touch with the country if she attacks the one part of immigration enforcement that actually seems to have become more effective under both Bush and Obama. In any event, the brief will probably fuel a narrative popularized by David Brooks — that she’s a Gen X careerist whose main goal in life has been to avoid stepping on culture-wars landmines strewn by the boomers.
Just another Friday document dump….or politics as usual from the Obama administration.