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.)
The 2006 Arizona immigration law was challenged as soon as it was enacted, but it was upheld in both the district and appellate courts. The more recent Arizona immigration law, known as SB 1070, has provoked litigation and a halting boycott of Arizona.
Now the controversy over SB 1070 may affect the fate of the first law, which is in the last stages of litigation. Last year, the groups challenging the first law as preempted filed a certiorari petition. The Supreme Court asked for the views of the federal government at the beginning of the term — on November 2, 2009. The Solicitor General has finally filed its brief, and it asks the Court to grant certiorari and strike down the Arizona law.
Here are my first thoughts on the SG’s filing:
- The brief is particularly awkward for Secretary Napolitano. She is the SG’s principal client on this case, since she administers the immigration laws. And as governor of Arizona, Secretary Napolitano signed the Legal Arizona Workers Act, saying ““Immigration is a federal responsibility, but I signed [the bill] because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs. I signed it, too, out of the realization that the flow of illegal immigration into our state is due to the constant demand of some employers for cheap, undocumented labor.” It’s true that Governor Napolitano also asked for changes to the law to make the civil rights provisions stronger, but it’s hard not to read the brief as repudiating her decision to sign the act.
- 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.
- Also striking is how far the SG has stretched the usual rules for certiorari in pursuit of that goal. There is no conflict in the circuits, as the SG admits in a footnote. And its talk about how the state’s penalties and procedures will distort immigration enforcement is all a little, well, hypothetical. This for the reason that the lawsuit is a facial challenge, not a challenge to the law as applied. Indeed, there’s been surprisingly little state enforcement in Arizona, which might say something about the risk that state enforcement will distort the federal scheme. The Supreme Court doesn’t like to take cases without, you know, facts and things, and it doesn’t like to take cases without giving the courts below a good long chance to chew the issues over. Skipping those steps is usually a recipe for screwing up. Yet here, the SG is urging that all those rules be tossed overboard. Why? Because, well, because it’s important. This is about immigrants, and racism, and Arizona, for Pete’s sake! There’s no time for niceties like a factual record or a conflict among the circuits.
- Equally fascinating is the brief’s over-clever and tone-deaf treatment of E-Verify, the electronic database that is the best thing to happen to workplace enforcement in the last fifteen years. It’s fast, and it stops one kind of fraud — fake names and Social Security numbers — cold, with very little impact on legal workers. But it only really took off when states began requiring businesses to use it. Now, something like one out of three or one out of four new hires is run through this electronic screen — up from one in twenty before Arizona started the ball rolling. The federal government has invested more than $100 million to make the system easy and to ease any impact on lawful workers. Congress has reauthorized the program and funded the improvements under Republican and Democratic Congresses. It’s a signature initiative of blue-dog Democrats like Heath Shuler. The Obama administration, and Secretary Napolitano, have given vocal support to E-Verify. So you’d think it would be hard for the Solicitor General to oppose it. Think again. The SG trashes Arizona’s E-Verify mandate as inconsistent with federal law: “The better reading of the law is that States and localities may not impose such requirements.”
- 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.
- How does the SG deal with this big hole in its analysis? I am flabbergasted and disappointed to say that the SG seems to do something even a law student learns not to do by his second moot court. It ignores the problem. Its statement of facts acknowledges the 2009 reauthorization of E-Verify in a sentence. But thereafter there’s not a hint that the reauthorization might have an impact on the SG’s argument. I have to say that I expected better of that office. I’ve never known them to hide a relevant contrary authority (that’s what its footnotes are for). But I don’t think any good lawyer could miss the problem that the reauthorization poses. And I don’t think the SG did miss it; the SG’s language seems just a little too clever. Here’s what the SG says:
But the statutory language contains noindication that Congress intended to permit States toundermine its own decision not to impose a blanketmandate on all employers by allowing States to imposejust such a mandate.But the statutory language contains no indication that Congress intended to permit States to undermine its own decision not to impose a blanket mandate on all employers by allowing States to impose just such a mandate.
- Now, I suppose someone could justify that language by saying “Hey! I was talking about the statutory language, and that’s what the brief says — the statutory language contains no indication that Arizona’s law is approved. It doesn’t say anything about indications derived from Congress’s later enactments. So it’s technically accurate; there isn’t anything in the statutory language that blesses Arizona’s law.” But anyone who offers that defense doesn’t deserve the trust of the Supreme Court or the respect of the Supreme Court bar. I know that sounds harsh, and I like and respect a lot of people in the SG’s office, so I’ll leave it in the conditional until I hear the SG’s justification for what looks at first blush like very slippery advocacy.
- Worse, it’s slippery advocacy to no point. Because the SG ends up saying that there’s no need for the Court to grant certiorari to decide whether the E-Verify mandate is pre-empted. (If it hadn’t been thirty years since Saturday Night Live was funny, I’d cite Emily Litella in this space; but never mind.) Why does the SG think the Court should deny cert on that question? Because “E-Verify is continuing to evolve, discussions are ongoing within the federal government about appropriate ways modify the system, and the sunset provision ensures that Congress will revisit the program and decide by September 30, 2012, whether to maintain it in its current form or modify the program. Thus, any decision on the E-Verify question could soon be overtaken by events, and there is no compelling need for the Court to intervene in this interim period.” If that’s where the SG finally comes out, why did it take that long, slippery detour to trash this part of Arizona’s law? 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.
- Just two or three final thoughts. First, [[Deleted (strike-through font seems to be broken): why did this crippled wisp of a filing take seven months to get to the Court? Not the research load; the brief cites fewer than a dozen cases. My guess is that the main reason was a long fight over the politics of what the brief should say. That’s a principal cause of crappy SG filings, and this brief certainly fills that bill. Second,]] why was this brief released late on the Friday before a long weekend? That’s usually where administrations bury stuff they hope no one will notice. (Me, I’m all for it. The Saturday of a long weekend is the only time I can really find to do substantive blogwork. If enough bloggers turn out to have day jobs, the age-old rule about how to bury bad news may require a codicil.) Hiding this brief would be smart politics, but I don’t presume that the SG scheduled its filing for political reasons. It’s also possible that there were Supreme Court practice reasons for the schedule. The Court’s last conference is July 1. Maybe there’s a requirement that the SG’s brief be filed more than thirty days before the conference where it will be considered. I’ve frankly forgotten, and I’m hoping someone closer to current practice will provide the answer, although I still think that the brief could have been filed next Tuesday even under a thirty-day-notice requirement. If it could be filed Tuesday, that’s when most appellate lawyers would file it; if they have a chance to improve a brief over the weekend they will take the time to do so. (Unless of course they’re being watched closely by jealous political masters, who can’t usually be forced to proof editorial changes on Sunday.)
- 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. Either way, I doubt this is more than a speed bump for her. But if it becomes even a minor issue for her, it could become a major problem for Neal Katyal, who actually signed the brief and who does own it, warts and all.
UPDATE: I removed my suggestion that the brief was unduly delayed based on comments noting that the SG often delays filing its views until late in the term. It’s still a crappy, crippled wisp of a brief, but not an unduly-delayed, crappy, crippled wisp of a brief. Whether it was the subject of an internal political fight remains a matter of speculation.
guest says:
tl;dr
May 29, 2010, 8:00 pmPersonFromPorlock says:
Ah well. “A foolish consistency is the hobgoblin of little minds.”
May 29, 2010, 8:04 pmaeolius says:
As a non-Lawyer who has winced at some of the stupid mistakes that have trashed some important trials etc., I have come to the conclusion that there is a category of legal theater called Born to be Overturned.
May 29, 2010, 8:11 pmThat is a trial is held with proper ceremony or here a brief is filed. But there is no intention of it standing up under review.
Thus Obama can have his cake of this filing but with the knowledge that it will not end up being the law of the land.
I do know how cynical I am to think that the Law can be tweaked for a political purpose but so be it.
Hans says:
Why would anyone expect the Obama Administration and Elena Kagan to defend a state law, when they have repeatedly shown that they will not even live up to their duty to defend federal laws that are challenged in court — such as federal sentencing laws?
May 29, 2010, 8:17 pmHans says:
It is an embarrassingly shoddy brief, though. Inconsistent with past Administration and DOJ positions.
An embarrassment even for this administration.
May 29, 2010, 8:20 pmHans says:
The Obama Justice Department is also being sued over its stonewalling and cover-up in the Black Panther case, where the U.S. civil rights commission is investigating the Obama Administration’s politicization of the Justice Department, and dismissal of a voter intimidation case that career justice department attorneys had won against members of the racist, anti-semitic New Black Panther Party.
A career Justice Department lawyer resigned in protest of the Obama Administration’s cover-up and illegal refusal to comply with the civil rights commission’s subpoena.
Judicial Watch is suing the Justice Department for refusing to comply with FOIA in withholding documents about the case.
May 29, 2010, 8:42 pmDisplaced Midwesterner says:
Those are a lot of interesting points of policy and procedure. But is the brief really wrong on the law, especially regarding the one point it suggests granting cert on? The argument that “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,’” may not make many people happy from a policy perspective, but it seems like a pretty strong argument that the Arizona law runs afoul of the federal law’s preemption clause (and exceeds the scope of its savings clause). Congress did pass a weak enforcement statute. And it did make that statute expressly preemptive.
Which, honestly, is kinda the point probably. From a certain vantage, “the brief takes positions that from a political and policy point of view are hard to square with, well, sanity,” but an empty political gesture with minimal actual impact upon the operations of big and small businesses are probably precisely what Congress was aiming at.
The lack of a circuit split also doesn’t seem like a big deal. From a federal perspective, wouldn’t the SG want to get cert to overturn a circuit’s (in the SG’s view) incorrect decision to not give a federal statute preemptive effect?
I’m not really sure this is such a shoddy brief. Given the heated atmosphere surrounding everything touching on immigration these days, it seems at worst about what you would expect. I think most of your disappointment is with the fact that the real policy of lot of Congress and the administration (as opposed to public soundbites) is simply different from what you want.
May 29, 2010, 8:42 pmPeteP says:
“First, why did this crippled wisp of a filing take seven months to get to the Court?”
Because Governor Brewer hadn’t signed the new immigration laws back then ? Now the amnesty folks need to try to come up with some kind of battle plan to try to stop the tide that has begun.
Funny enough, the AG of Arizona flew to Washington to talk with Holder, right before Governor Brewer threw his ass off the case ( as the legislature luckily had the foresight to authorize ).
Gee, I wonder what this rabid anti-Arizona-law AG had to talk about with Holder ? Could it be maybe .. ways to throw the case HOlder will bring against the new law ? Using the lame SG brief you cite as a model ? So that the AG could say ‘Well, I did my job’, while filing and arguing the weakest most deficient case possible, and cueing Holder in to make sure he didn’t miss the big holes in it ?
May 29, 2010, 8:56 pmbottom says:
several hundred words to reach the uninteresting conclusion:
“Either way, I doubt this is more than a speed bump for her.”
May 29, 2010, 9:03 pmStewart Baker says:
Displaced Midwesterner has a point. I agree that this was a bad policy call, and that’s why I was willing to spend Saturday digging into the brief. I also would not argue that the position taken by the SG on the merits is untenable, though it’s not required by law. The Bush Administration thought seriously of going in on the other side, to argue that there was no preemption, and that position too would have been perfectly justifiable. But the standard for cert is not whether the United States can plausibly argue that the court of appeals is in error. Seeking cert without serious error, or a conflict, or a factual record is pretty unimpressive, and the weird, half-baked attack on E-Verify is an embarrassment at best, and a shocking deviation from the standards of the office at worst. So overall, and judged as a certiorari filing, this brief is an outlier in the SG’s history, not just for this term, but for this decade and maybe longer.
May 29, 2010, 9:11 pmLou Gots says:
Look at this cookout from a layperson’s point of view. Saying that Arizona may not so regulate employment within its borders is an admission–a rather blatent admission–that the Federal “law” in this area is a sham, not intended to be enforced.
May 29, 2010, 9:17 pmEvilDave says:
Here is an idea …
May 29, 2010, 9:30 pmthey could just call anyone that opposes Open Borders “racist”.
they could also call anyone who opposes Obama’s views on this matter “racist”.
In fact, why not call anyone they don’t like “racist”.
Alex J says:
I was under the impression that there are a lot of false positives with e-verify. I haven’t supported either SB 1070 or this because of putting undue burdens on those that aren’t meant to be affected by the laws. The number I’ve seen puts the false positives at .3 percent which is a high number. With the 150 mil workers in the US that would affect 450k workers, I think that is too many.
Do you have any data to backup that statement?
May 29, 2010, 9:48 pmGuy says:
I’m sorry, but do you honestly believe that it is even remotely consistent with Supreme Court precedent to say that the states may impose harsher penalties for immigration violations than Congress has chosen, given that Congress has enacted detailed legislation that was intended to occupy the field?
May 29, 2010, 9:52 pmLou Gots says:
This is a real Whiskey-Tango-Foxtrot moment. Guy, Arizona is not imposing any kind of penalty for “immigration violations” by this provision. The penalty under discussion is to be levied upon employers, for illegal employment practices.
May 29, 2010, 10:17 pmCurle says:
May 16, 2008
Debunking the “E-Verify Error Rate”
Everyone agrees that illegal immigrants cross our borders because they want to work here. If we can reduce the lure of illegal employment, we can reduce the pressure on our borders.
That’s exactly what E-Verify does. When an E-Verify employer hires a new worker, the employer gets on line and fills out a short electronic form. As soon as the employer hits “send,” the system checks to make sure that the worker’s name matches his Social Security Number. If the worker is not a U.S. citizen, the system also checks to make sure his work authorization is still valid and shows the employer the picture that should be on the DHS-issued identity card. For most workers, verification is instantaneous.
E-Verify is simple, free, and highly effective in preventing illegal work. It works, and maybe that’s what the interests arrayed against E-Verify don’t like. Whatever the reason, opponents of E-Verify have resorted to charges that just don’t hold up. In this series, I debunk the myths.
The opposition to E-Verify often claims that the program has a high error rate. Some critics claim that the error rate is as high as 4% and will lead to millions of Americans losing their jobs by mistake.
To see how wrong this claim is, we need to look more closely at how E-Verify works. We can draw a precise picture of what happens to a thousand applicants who use E-Verify by using data gathered from October 2006 to March 2007 by Westat, an independent reviewer.
Of the thousand, 942 are instantly verified. Instant verification of legal workers surely can’t be an error.
Fifty-eight are told that they have to do something more to establish that they are lawfully authorized to work. Usually this means they have to go to Social Security to correct the mismatch in name and number. (Typos and similar problems are cured on line, so legal workers usually have a problem only if they changed their names or citizenship status but failed to tell Social Security of the change.)
So five of the thousand must go to Social Security and straighten out their records. For 90% of them, the process takes less than 2 days. Is that an error rate? If so, it’s ten times lower than our critics claim. And, is it really an error to tell workers that their social security credits aren’t being properly recorded? Sooner or later, the worker will want to collect benefits, and they won’t want to face doubts about who earned the credits. (Of course, straightening out Social Security records isn’t fun, but we’re working to reduce the hassle. Just a few weeks ago, we introduced software changes that will automate some of the correction process, reducing the number of legitimate workers who have to go to Social Security offices from five to two or three per thousand.)
That leaves the 53 who walk away. Is that an error rate? There are certainly people who believe it’s an error to keep illegal workers out of the U.S. workforce. But we don’t. It’s our job to enforce the immigration laws.
And common sense suggests that the walkaways are overwhelmingly likely to be illegal workers. It’s just common sense that a legal worker wouldn’t want to walk away from a job he applied for–and has been offered if he straightens out his records. It’s just common sense that a legal worker wouldn’t walk away from the opportunity to correct Social Security records he now knows are wrong – records that will have to be corrected for him to get benefits. And it’s just common sense that about five percent of E-Verify workers would walk away, since a Pew Foundation expert recently estimated that 4.9% of U.S. jobs are held by illegal workers. It’s hard to see the walkaway rate as an error; in fact, that’s the program working as it should.
Stewart Baker
May 29, 2010, 10:24 pmAssistant Secretary for Policy
Michelle Dulak Thomson says:
Lou Gots,
This is a real Whiskey-Tango-Foxtrot moment. Guy, Arizona is not imposing any kind of penalty for “immigration violations” by this provision.
Just so. As I’ve said before here, many people clamor for punishing the exploitative employers rather than the exploited illegal immigrants up until the very moment someone seriously tries to do it. At that point, the tone changes abruptly.
The charitable explanation would be that the clamorers had only just realized that seriously punishing employers of illegals would suddenly deprive a large and vulnerable population of any means of subsistence. The cynical explanation argues that that course of events was always obvious, and that employers were meant to be kept in a perpetual limbo — always denounceable as exploiters, but never quite given the means to certify that they weren’t, because if they were able absolutely to hire only citizens, a lot of poor people would be unable to work.
Something like E-Verify is going to work only if mandated, because illegal labor is generally cheaper than legal, and public-spiritedness goes only so far.
May 29, 2010, 10:45 pmGuest Poster says:
Your criticisms of the brief demonstrate you have little knowledge of the SG office or the Supreme Court. For instance:
1. You speculate that the brief took seven months because of “the politics of what the brief should say” and that this delay is somehow unusual or unprofessional. That is not correct. It is customary for the SG to file a large number of briefs in late May, so that they are considered at the last conference of the Term. The SG filed at least 6 CVSG briefs between May 25 and May 28, including a CVSG brief in Golden Gate Restaurant Assoc. v. San Francisco, an ERISA preemption case, which was CVSG’ed on 10/5/2009. The SG’s practice during the Bush administration was identical. I did a few random searches of the Supreme Court’s docket; here are a few filing dates during the Bush administration:
FTC v. Schering-Plough Corporation — CVSG 10/28/2005, CVSG brief filed 5/17/2006
Air Conditioning & Refrigeration inst. v. Energy Resources Comm’n — CVSG 11/14/2005, CVSG brief filed 5/26/2006
Cox v. DaimlerChrysler — CVSG 10/27/2006, CVSG brief filed 5/17/2007
Riegel v. Medtronic — CVSG 11/6/2006, CVSG brief filed 5/23/2007
Geddes v. United Staffing Alliance — CVSG 10/1/2007, CVSG brief filed 5/23/2008
In fact, I challenge you to find a single case during the Bush years, when the SG’s office was supposedly more professional, which was CVSG’ed in November and which was NOT filed in late May of the subsequent year. (Perhaps I missed one, I did not do an exhaustive search.) There is nothing suspicious whatsoever about the filing date, you simply do not know what you are talking about.
2. You contend that the “SG has stretched the usual rules for certiorari” because there was no circuit split. This is ridiculous. First, the SG regularly recommends granting certiorari without direct circuit splits for important cases. The Bush SG did this all the time. Second, the Supreme Court was aware there was no circuit split when it CVSG’ed the case; presumably it did not want the SG to simply say “no circuit split, deny!” It wanted to know whether the SG thought that, notwithstanding the absence of a direct circuit split, the case was important enough to grant cert; it is not a “stretch” for the SG to answer “yes.” Third, this is a preemption case. There are rarely square circuit splits in preemption cases because different states have subtly different laws, but the Court takes preemption cases all the time. Indeed, if there is a single area of law in which the Court regularly takes splitless cases, it is preemption. Fourth, do you really doubt that this case is exceptionally important? Arizona is a key border state and the validity of its immigration laws is an important issue even without, say, an identical Texas law and a Fifth Circuit opinion going the other way. The fact that you are blogging about the importance of the case demonstrates that it was not a “stretch” to say that the Supreme Court should consider it.
3. Third, on the merits: perhaps you disagree with the SG’s position here, but you somehow omit in your post that the pertinent federal statute contains an express preemption provision. This is not a case of implied preemption. The question is whether Arizona’s law is a “licensing or similar law” within the meaning of the federal statute. I think that, regardless whether you dislike the federal government’s enforcement efforts, the answer is clearly “no,” for the reasons stated by the SG. I strongly suspect that a substantial majority of the Court will go with the SG on this one. Legal cases are not decided because you are pissed off at illegals and are happy Arizona is cracking down on them, they are decided on the basis of analysis of statutory provisions.
May 29, 2010, 10:46 pmGuest Poster says:
Oh, as for your assertion that the absence of a factual record some how makes the case unsuitable for the Supreme Court, that too is ridiculous. This case is perfectly appropriate for a facial challenge. The question presented is whether the statute as written is preempted. The penalties and rules of the statute are clear. The issues are purely legal. Again, pre-enforcement challenges involving issues of law are taken up by the Supreme Court regularly, and that description fits this case to a T. You really do not know the way the Court works.
May 29, 2010, 10:51 pmvinnie says:
Michelle Dulak Thomson: The charitable explanation would be that the clamorers had only just realized that seriously punishing employers of illegals would suddenly deprive a large and vulnerable population of any means of subsistence.
I don’t have a problem with that actually. It is this word: “illegals” you know like muggers, car jackers, buglers, bank robbers, identity thieves, I have no problem depriving them of their means of subsistence.
May 29, 2010, 11:07 pmJay says:
Um, I agree this brief sounds shoddy, but the SG has no general obligation to “defend” state laws. Their obligation would be the opposite if they conclude that a state law is in conflict with federal law or constitution.
May 29, 2010, 11:13 pmAlex J says:
@Curle
So you don’t have any data to backup that assertion? I’m getting that .3% number (which is on the low side could be as high as 3.1%) from the USCIS.
All this puts many costs on both the employer and the employee, not to mention the government, costs which I think are too high for the limited benefit that we get. I think that money could be better spent elsewhere.
May 29, 2010, 11:14 pmJay says:
I’ll take your word for it that you have more SC expertise than the average lawyer, but the author of the OP clerked for Justice Souter and spent time in OLC, so he’s perhaps less of an ignoramus than you believe.
May 29, 2010, 11:23 pmAlso, if you’re trying to convince people of something, my experience in reading and writing briefs at less rarefied levels is that describing the other side’s arguments as “ridiculous” and based on “little knowledge,” as well as impugning their motives, is rarely a successful tactic.
o says:
I’m curious about this preemption issue.
If a business is required to be licensed by a state, can the state not revoke the license for hiring an illegal? Can the feds really prevent a state from administering (or enforcing) its licensing scheme?
Talk about a federalism / state’s rights issue!
May 29, 2010, 11:26 pmThe Unbeliever says:
Isn’t it funny how it’s OK to sock banks and financial institutions with higher transactional and tax costs, but somehow it’s just HORRIBLE to raise the hiring costs for companies that might employee illegal immigrants?
Hell, we threw a whole wad of useless regulations and added costs at all companies back in 2002 in the form of Sarbannes-Oxley, and that was over a relatively small number of high-profile fraud cases. SOX documentation is annoying, pointless, and done every day; E-Verify work is done once per employee, upon hiring. Why not toss a speed bump at the known, large (10-20 million depending on whose numbers you use), illegal segment of the economy?
May 29, 2010, 11:39 pmMichelle Dulak Thomson says:
Alex J,
All this puts many costs on both the employer and the employee, not to mention the government, costs which I think are too high for the limited benefit that we get. I think that money could be better spent elsewhere.
And no doubt most employers would agree with you. But they must be very tired of their role in the “national conversation about immigration,” or whatever we’re calling it now. As long as they hire illegals, they’re exploiting vulnerable people; but if they make any serious effort not to hire them, they’re
not exploiting vulnerable peopleleaving vulnerable people to starve in the streets.I wish someone could explain to me what a “socially responsible” corporation is supposed to do here.
May 30, 2010, 12:06 amAlex J says:
I would much rather secure the border and at least right now they are mutually exclusive. Thats the opportunity cost of having e-verify. It’s a waste of money when there are better things to spend that money on.
May 30, 2010, 12:20 amStewart Baker says:
Alex J:
Thanks to @Curle for the post, which saves a lot of chit chat. Alex, the .3% number is the only likely “false positive,” and it corresponds to 3 people out of a thousand. These 3 workers were told that they had an initial mismatch that had to be corrected, which they did, successfully. As I said earlier, the mismatch usually occurs when a worker changed his name or work status without informing Social Security, something he ought to do before he has problems making a claim for benefits. Even if you think that’s a pain in the butt that three in a thousand workers should be spared, it’s typically a once-in-a-lifetime pain in the butt. And rather than extrapolate possibilities, why not look at current practice? If one in four or one in three new hires is going through e-Verify now, and they are, shouldn’t there be thousands of tales of woe in the press about honest Americans caught in the government maw? It’s not like the market for such stories has dried up suddenly.
And what about the 2.8%? Those are people who were told that they had a mismatch and who didn’t contest the determination or who failed to persuade Social Security that they were legal workers. I think it’s fair to assume that those are the people we’re trying to keep out of the workforce, rather than false positives.
Guest Poster:
I am persuaded by your stats on CVSG filings. It makes sense that the SG would backload those submissions so that the bulk of the work can be done after the press of arguments diminishes. But I didn’t cite the delay as a sign of unprofessionalism. I just offered a guess that the delay was caused by political squabbling, though I now agree that the delay doesn’t shed much light on the amount of squabbling. On the other hand, it remains a crappy brief in the way that politically driven SG briefs often are.
I’m less persuaded by your other arguments. Of course it’s possible to argue for cert in a splitless, factless, dime-a-dozen preemption case, but to do so, the SG has to argue that the decision was in error and that the error is really really important. That in the end is your argument.
I don’t agree either that there was an error (true, there is an express preemption clause, but there’s also an express savings clause that was directly on point, not just according to me but according to the Ninth Circuit) or that overturning the law is a crucially important federal responsibility (in fact, it defies common sense to call on the Supreme Court to make sure no state enforces the law because it’s a federal responsibility to make sure the law isn’t really enforced). The only way Elena Kagan won’t be confirmed is if she goes in front of the Judiciary Committee and says she stands behind this brief because the Ninth Circuit was too conservative and because it is really really important to stamp out any state action to deter hiring of illegal workers.
One last point: As far as I’m concerned, anyone who uses CVSG as a verb has to qualify as a knowledgeable student of the Court, even when apparently overcaffeinated or OD’ing on anonymity. So I note that despite your familiarity with the SG’s office, you chose not to defend its omission of any argument on the reauthorization point. Since that was the only reason I went beyond disagreement with the brief to a suggestion that it might be unprofessional, your decision to go for the capillaries leaves me thinking that the SG’s omission may not be defensible.
So, motivated as you obviously are, and knowing the conclusion I’m drawing from your silence, would you be willing to take another look and give me your best defense of the SG’s brief on that point? If you find something persuasive, feel free to call me an ignorant purveyor of ridiculous arguments. If you find nothing, I’d appreciate hearing that, and I promise not to call you names.
Stewart
May 30, 2010, 12:26 amGuy says:
…which are violations of prophylactic immigration enforcement laws, hence immigration violations. That is, violations relating to immigration. I’m sorry if that confuses you.
May 30, 2010, 12:42 amEC-Culver says:
Elena Kagan, born in 1960, is NOT a member of Generation X.
From Wikipedia: “Generation X, commonly abbreviated to Gen X, is the generation born after the baby boom ended[1][2], with earliest birth dates used by researchers ranging from 1961 to the latest 1981″.
Kagan is a Brady Bunch boomer .. a “That ’70s Show” boomer.
As someone who is smack dab in the middle of the Gen X cohort, I take great offense.
May 30, 2010, 2:08 amORID says:
Mr. Baker,
Did you ever read the SG Brief made for the In Re: Chrysler case; notably the Indiana Pension Fund Challenge to use of TARP funds? That one was a stinker as well. As someone who is not a lawyer I’m not impressed by Kagan’s legal genius. Congressional inaction doesn’t tell us anything about Congressional intent, I always thought the question is “does the statute forbid the action (Arizona’s law)”, and “does the statute allow the Executive interpretation of the law?”
Of course if your client (Mr. President and Executive Agencies) asks you to go forward with a shaky case, you try to make some lemonade.
May 30, 2010, 2:29 amORID says:
Thinking further, isn’t more likely the Supreme Court will rule that Congress cannot pre-empt the state laws because:
States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen’s compensation laws are only a few examples. California’s attempt in § 2805 (a) to prohibit the knowing employment by California employers of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of such police power regulation. Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. (De Canas v. Bica)
I don’t think Congress has authority over whether states decide on who can be employed or not within their state; this wouldn’t be under any Constitutional power. The brief seems completely awkward. “States can’t forbid companies from hiring unauthorized workers.” Clearly I think there is a balance of powers here. Federal-level it seems to make since that they have immigration regulation authority; but if a state wanted to say that hiring an unauthorized worker is going to be a greater crime; I fail to see what power Congress has to regulate Arizona in how it regulates internal commerce. Certainly Arizona is not going to penalize companies based in Utah, even if those employees happen to reside in Arizona.
So it may be that this part of immigration law gets struck down as not within Constitutional power (does AZ argue that?).
May 30, 2010, 2:53 amBecky Chandler says:
Why is Stewart Baker writing for the Volokh Conspiracy? And today he got two posts. It is good to have a broad range of views–within the parameters of what a publication (or blog) is about. This is a moderately libertarian leaning legal web page.
Baker doesn’t belong here– I go to the Weekly Standard to get my fill of the type of opinions and analysis Baker offers up. He is a neoconservative who served in the Bush administration–and seems to be quite alarmed about immigration, which is more critical than any other problem facing the nation. Baker is always the first to tackle any legal development in this area—and comes down squarely on the side of Nicklebag Joe Arpaio, the Sheriff of Maricopa County.
Maybe you are trying to spice up the page with some D-list government policy wonks. But frankly, the fact that Baker was undersecretary at Homeland Security and counsel to the NSA are two reasons his opinion is out of place on this page.
[Ms. Chandler: If you insist of libertarian purism, you're at the wrong blog. This blog generally ranges from moderate to libertarian to conservative, and is certainly not limited to libertarian perspectives. I myself am generally a libertarian conservative, and am pretty conservative on many national security matters. I'm also open to views more conservative than mine, especially on national security -- and I'm delighted that Stewart Baker is here to provide those views, especially given the great deal of thought he has given to them, and the great deal of knowledge he has acquired on the subject. -EV]
May 30, 2010, 3:27 amadvisory opinion says:
He clerked for Stevens. I really enjoyed this post btw. Solid weekend blogging.
May 30, 2010, 4:32 amJay says:
My bad. I clicked on the wrong Stuart/Stewart on the Volokh bios section. I thought this was by the Duke law prof.
May 30, 2010, 6:55 amPersonFromPorlock says:
Time to ring in Bastiat: in this case, the ‘thing not seen’ is the vulnerable legal workers not hired, or hired at lower wages, because of competition from illegals. That makes it a moral ‘wash’ for the socially responsible corporation – so it can obey the law with a clear conscience.
May 30, 2010, 7:12 amAdam B. says:
What Guest Poster said. Here’s the remaining conference schedule for the Court.
[I was involved in a CVSG case last term where the SG's brief was filed at precisely this time for us as well.]
May 30, 2010, 8:05 amGuest Poster says:
I fail to see how the statements about e-verify reflect unprofessionalism in the SG’s office. In fact they are not problematic at all in my view.
1. The brief says that the e-verify requirements are preempted because they impose greater restrictions than the restrictions imposed by the federal rules. The brief notes that Congress expressly required participation in e-verify only by federal employers and employers who previously violated IRCA, and any attempt to use the federal e-verify program and impose greater restrictions is inconsistent with Congress’s balance. This is a perfectly respectable implied preemption argument. Cf. Geier v. American Honda Co., 529 U.S. 861 (2000). The brief also notes that the Arizona law governs “the regulatory relationships and functions of a federal agency,” which is further reason to believe that the federal statutes and rules should govern here even absent an express preemption clause. Perhaps you disagree with this holding; implied preemption / field preemption is one of the most ambiguous and indeterminate areas of law because you never know whether the federal regulation is a floor or “strikes a careful balance.” But there is nothing unprofessional about the contention.
2. You claim that the brief whitewashes the fact that e-verify was re-authorized in 2009 in an appropriations bill. The argument you appear to be making is that because Congress was aware of the Arizona law when it reauthorized e-verify, and did not add explicit preemption language, one can infer that it acquiesced to the Arizona legislation. In all honesty I do not find arguments like this persuasive; several Justices have derided such acquiescence arguments as a form of legal fiction. It seems especially like a fiction given that the reauthorized statute is buried in a massive appropriations bill and when the state law is subject to ongoing litigation at the time of the reauthorization. A far stronger possibility is that the reauthorziation of the bill — without any pertinent substantive changes, as far as I am aware — was intended to keep the status quo, meaning that courts should not draw any conclusions from the mere fact of reauthorization. Anyway, it’s true that the SG did not make the argument you suggest, and then refute it on the grounds I suggest. But I do not see the failure of the SG to raise, and then refute, an argument it apparently regarded as unpersuasive, as a sign of unprofessionalism. The litigants will make that argument in response to the SG’s brief and the Court can consider it then.
3. You also assert that the brief is unprofessional because it conflicts with a statement in a previous brief by the federal government in a U.S. District Court. I took a look at the brief and I find it unproblematic. First, there is no general problem with the SG taking a position different from the position taken by the United States in a brief in a lower court. There are lots of federal lawyers, and not all of their arguments or briefs are specifically reviewed by the SG. The SG has an independent obligation to determine the position of the United States before the Supreme Court and that obligation is not extinguished because a line attorney took a contrary position in an earlier case. Second, the prior statement by the government was basically a dictum in a brief in a case that did not even deal with preemption. It dealt with the propriety of an executive order involving federal contractors. To reiterate, the SG is not bound by the dicta of its line attorneys.
4. I am sorry for having used the word “ridiculous” and comparable wording in my prior post, but I thought your post was quite irresponsible. You went beyond criticizing the merits of the SG’s brief, and called embarrassing, a doozy, etc., on the basis of speculation of political warfare at the SG’s office. Those are strong accusations and in my view they are not backed up by the facts. This brief is entirely consistent with the SG’s historical practice and does not reflect poorly on the people working in the SG’s office. Of course this is only a blog, but a lot of people do read this blog; it is very influential. As for my comment using rude language, basically no one reads blog comments other than the author of the post and a few weirdos (like me). But I apologize nonetheless.
May 30, 2010, 9:03 amStewart Baker says:
Guest Poster:
Thanks for the thoughtful response. But I think you’re still overstating for effect. I’m very critical of this brief. It’s crappy for all the reasons stated. But the only place where I question its professionalism is its slippery failure to acknowledge the impact of the reauthorization, including what looks like an overclever effort to edit its argument to avoid acknowledge that point. You’ve pretty much confirmed my view that there’s no good excuse for what the SG did here. Of course, I agree with you that there are arguments to be made in response to the reauthorization point, but the SG didn’t make them. The Court quite properly expects more from the SG than “well, it’s up to the other side to make arguments in its own support.” (Especially in a brief filed 30 days before the last conference. When exactly is the other side supposed to make its responsive filing, and what is the chance it will be studied, or even read?)
If I’m not testing your patience, I note that I raised the Friday filing question in the original post, and no one has yet offered a view on whether Friday was the last possible day for making a CVSG filing. I suppose we can wait until Tuesday and see if there are more VSGs, which would add to my timing suspicions, but can you offer an innocent explanation for the Friday filing?
EC-Culver
You’re no doubt right. I knew I was pushing the envelope to call her a Gen-Xer. But in context, what’s important is that she’s not a boomer either. She’s the boomers’ younger sister, able to see and eager to avoid all the bitter fights of that generation with a little sister’s clarity and diplomatic skill. Gen-X in spirit, then, if not by the calendar.
Stewart
May 30, 2010, 10:20 amORID says:
If the argument is correct than can’t employers sue over minimum wage laws in the state which are higher than Federal minimum wage laws? I don’t see why states are prevented from providing their workers with “stronger protections” against illegal competition from unauthorized workers. Similarly, I don’t see why states would be pre-empted from protecting their citizens from people not authorized to be in the country. I understand why these examples are considered by opponents to be a “regulation of immigration”; but looking deeper they are not.
Furthermore, given the law isn’t the problem; but enforcement is, how is there any guarantee a new law will be enforced at the Federal level?
May 30, 2010, 10:44 amGuest Poster says:
Friday was indeed the last possible day to make the CVSG filing for it to be considered during the Term’s last Conference. The Court’s practice is to distribute a brief no less than 10 days after the filing of a respondent’s brief, see Supreme Court Rule 15.5, and the 10-day rule also applies to CVSG briefs. According to this: http://www.supremecourt.gov/casedistribution/casedistributionschedule2009.pdf , the last day for distribution of paid cases is 06/08/2010 (those cases are considered at the 6/24 conference). 10 days before that is 05/29/2010, a Saturday, so the last business day before to file was 05/28/2010.
You also ask, “when exactly is the other side supposed to make its responsive filing?” It is regularly the case that both sides file briefs in response to a CVSG brief, notwithstanding the fact that the petition is distributed for Conference 10 days after the filing of the brief. The timing issues in connection with such a reply brief are actually identical to the timing issues in connection with a standard reply brief in support of certiorari. A petition is distributed for Conference 10 days after the respondent’s brief is filed (and the Conference is typically ~30 days after the respondent’s brief is filed), but the petitioner often finds the time to submit a reply brief quickly and the reply brief is regularly considered by the Court in deciding whether to grant certiorari.
Finally, I do not find the brief “overclever.” The brief says that the text of the statute contains no indication that states could enact more stringent e-verify rules. I don’t think this is a subtle attempt to bury an argument about a reauthorization implying congressional acquiescence, I think it is just describing what the text says. I certainly don’t think that anyone who makes a statement about the plain text of the statute without directly adverting to the acquiescence argument “doesn’t deserve the trust of the Supreme Court or the respect of the Supreme Court bar.” That was the sort of statement in your original post that led me to comment.
May 30, 2010, 10:51 amJonathan H. Adler says:
Stewart –
I don’t know when the deadline for CVSG filings, but there are several CVSGs outstanding from this term, all but one of which were from this spring. SCOTUSWiki has a listing here.
JHA
May 30, 2010, 10:56 amStewart Baker says:
Thanks, very helpful. If I understand the rules, the SG had to file on Friday because the Court wants ten days to assemble all the filings for distribution to the Justices, and the last day for distribution is June 8, a date set because the Court wanted a couple of weeks to review the distribution prior to the last conference on June 24. There is no scheduled opportunity for a formal response to the SG’s submission, but if a party really hustles, it is allowed to make a last filing commenting on the SG’s views. If it gets everything done by June 7, then its comments will be in the package reviewed by the Justices prior to conference. If it misses that deadline, its brief may get distributed, but there’s a real risk it won’t get read, since it may never catch up with the main package distributed on June 8.
I think that schedule undermines your defense of the SG’s failure to identify and address an obvious hole in its argument. First, to recap, I don’t see how someone aware of the problem, as the SG must have been, can phrase its brief that way without consciously editing it to avoid an argument it’s hoping the Court won’t see. Second, I think the irresponsibility is heightened when the editing occurs in the last formally authorized submission before conference. Getting a reply brief written, printed, and filed before distribution day is possible, of course, but it’s a tough job, made more difficult when the SG files on the Friday evening before Memorial Day and there’s only a little more than two weeks between distribution and conference. Everything in this schedule conspires to jam the defenders of Arizona’s law, and it doesn’t serve the Court well for any party, let alone the SG, to say, “Hey, they’ve got a theoretical opportunity to raise the argument we left out; they can put it in their (unscheduled and jammed) reply brief.”
May 30, 2010, 11:27 amGuest Poster says:
Why is the irresponsibility heightened when the brief is submitted in the last formally authorized submission before the end of the term? The schedule for the reply brief will *always* be jammed no matter when during the Term the brief is filed, because cases are distributed for Conference every week (at least toward the end of the Term — there are recesses earlier in the Term). If the CVSG brief had been submitted on May 20, then the case would have been distributed for Conference on June 1. If the CVSG brief had been submitted on May 15, then the case would have been distributed for Conference on May 25, and so on. I guess the distinction here is Memorial Day occurs in the week between filing and Conference, but come on, do you really think the SG filed on 5/28 strategically to ensure that one of the several intervening days between filing and Conference was a holiday? Or perhaps you are saying that the SG should have submitted its brief earlier in the week, to give Arizona a few extra days to respond? I really doubt that the filing of the brief on Friday as opposed to e.g. Tuesday reflects a conspiracy of any sort. It is simply not the case that “everything in this schedule conspires to jam the defenders of Arizona’s law.”
Also, not to repeat myself, but I don’t understand how you can say that the brief reflects conscious over-clever editing. Let’s say the statutory text says X but the legislative history makes an ambiguous statement Y which arguably could undermine the text. Let’s say that the SG says “the plain text of the statute says X” but does not discuss the legislative history. Is that a conspiratorial attempt to whitewash a brief that should cause the Court to stop trusting the SG? I don’t think so; the SG is not obligated to discuss ambiguous legislative history, and it is not a distortion to focus only on the text. It is the same thing here; the SG does not have to preemptively make and refute an argument of dubious merit concerning the impact of the reenactment. It should not be accused of being unprofessional and slippery because it uses the term “language of the statute” and indeed focuses on the language of the statute.
May 30, 2010, 11:45 amGuest Poster says:
Also, Arizona had every opportunity to make its argument concerning reenactment, or any other argument, in its Brief in Opposition to the cert petition. It’s not like the argument being raised by the SG (that the language of the statute does not contemplate any additional remedies) is somehow new or novel. Indeed the petitioner in this case, the Chamber of Commerce, made the exact same argument in its cert petition. The SG hasn’t inserted anything new into the case; it has simply expressed its view concerning the merits that were already aired in the cert papers.
May 30, 2010, 11:55 amStewart Baker says:
I don’t want to continue the argument unnecessarily, since we’ve fleshed it out pretty well, and the Court will decide whether it feels the SG was unduly slippery. Assuming you’ve made the best available defense of the SG’s tactics, though, I kind of hope the Court will push off a decision on the petition and schedule time for formal responses to the SG’s brief, since the SG seems to be acting, in this case at least, as just another aggressive lawyer who can be relied upon only when subjected to the scrutiny of opposing counsel. That would be unusual, and a rebuke, so it may not happen. But it looks to me as though the SG deserves it. I know you disagree, and if you want the last word, post away. Then maybe we should ask the Clerk to distribute this exchange too. ;-)
May 30, 2010, 12:05 pmrhhardin says:
The benefits of hiring illegal workers only go to the employer if he’s the only one that does it. Otherwise the benefits go to the customers.
May 30, 2010, 1:44 pmGuy says:
That depends on whether the federal minimum wage law was intended to preempt higher minimum wage laws (it wasn’t). This stands in marked contrast to the federal preemption of, for example, state usury laws.
No, even if it were inclined to rule this way, it would simply construe the law not to be preemptive, consistent with the canon of Constitutional avoidance. In any event it would be a departure both from precedent and Constitutional text for them to do so, since it’s well established that when Congress has authority to legislate in an area, it always has the power to sweep away any and all state legislation in that same area.
May 30, 2010, 1:49 pmjuris imprudent says:
Guest Poster: This is a perfectly respectable implied preemption argument.
Yet, you first excoriated SB for ignoring an “express exemption” provision and claimed “[t]his is not a case of implied preemption.” That gives the appearance of you speaking out of both sides of your mouth.
May 30, 2010, 2:37 pmGuest Poster says:
Excuse me. There are two separate issues presented in this case. On the first question, which concerns the provision of the Arizona statute imposing sanctions on employers, the SG recommended “grant.” That issue involves an express preemption provision and SB criticized the grant recommendation for that question. On the second question, the E-Verify part of the case, the SG recommended “deny.” On that issue, there is no express preemption provision, so the applicable argument would be implied preemption. So I am not talking out of both sides of my mouth; there are just two different legal issues involved.
May 30, 2010, 2:48 pmGuy says:
Reread the posts and the brief, the SG argues based on express preemption for the question on which it recommends the Court should grant cert. For the E-Verify question (which the SG says the Court should not grant cert on) the argument is one of implied preemption.
May 30, 2010, 2:49 pmjuris imprudent says:
Duly noted and I stand corrected.
May 30, 2010, 4:02 pmsardonic_sob says:
“Do I contradict myself? Very well, then, I contradict myself. I am vast: I contain multitudes.”
— Walt Whitman (IIRC.)
Anyway, it seems to me that the general argument against both this and the more recent law boils down to this:
“Sometimes we in the Federal government pass laws we intend to implement, and sometimes we pass laws that we do not intend to implement. We are the sole judges of which class any given law belongs to. If you [the States] try to enforce or otherwise implement a law of the second kind, we reserve the right to tell you to piss off. However, if you decline to enforce or otherwise implement a law of the first kind, we likewise reserve the right to tell you to move Heaven, earth, and the borders of your fiscal reality to make it so. It’s good to be the King.”
May 31, 2010, 10:51 amOrbit Rain says:
“I am flabbergasted and disappointed to say that the SG seems to do something even a law student learns not to do by his second moot court.”
“I have to say that I expected better of that office. ”
-
I have to say I wouldn’t expect better hires from a lecturer known for “running for office” rather than a professor pondering and expounding on the law…not to mention hiring people that like to walk on a six-inch carpet of scattered paper on their office floor.
May 31, 2010, 2:25 pmDowlan Smith says:
But “A principled consistency is the hallmark of a sound mind.” – me
As a former conservative I applaud AZ’s use of E-Verify as an efficient, cost-effective method of law enforcement.
As a libertarian convert I ask why a business needs a permission slip (license) from the government for the free exchange of goods and services. Let their customers and employees decide. Third party rating and certifications can also be used by consumers in deciding who to trade with. I can hire a shade tree mechanic or an ASE certified technician. Sometimes I will get the Consumer Digest best buy but mostly I go to Harbor Freight.
Would most business even bother with the expense and hassle of the state license if not for the fear of the JBTs (Jack Booted Thugs) of the state who will steal your stuff, put you in prison, or shoot you in the face if you try free enterprise. I guess the licensing is useful for large business to restrain upstart competitors.
May 31, 2010, 2:49 pmsetnaffa says:
One wonders if Kagan’s Law School profs are proud of this level of incompetence?
May 31, 2010, 3:31 pmMore on the SG’s Brief in U.S. Chamber of Commerce v. Candelaria | theConstitutional.org says:
[...] Stewart, I am interested in the Solicitor General’s decision to file a brief recommending cert in U.S. [...]
May 31, 2010, 3:55 pmSammy Finkelman says:
May 31, 2010, 4:46 pmSammy Finkelman says:
Unfortunately, that’s economic theory that no economist believes. and no conservative should. Unless a conservative is someone who does not believe that a poor man is poor because a rich man is rich, but a rich man is rich because a poor man is poor. Or maybe there is a transition point somewhere.
anyway the only people who care about being “socially responsible” are people who want immigrants, legal or not, to have jobs and whenever people get legalized, any corporation that did more than what the law required will be castigated and even corporations who did just what the law required. They will be apologizing for their record. Just give it time.
May 31, 2010, 4:58 pmDilan Esper says:
Maintaining federal control over immigration policy is extremely important. Indeed, recent events in Arizona have demonstrated that. The SG’s position is neither surprising nor incorrect. People who love Arizona’s approach to the immigration issue need to win elections on the federal level– the fact that they never have despite years of trying suggests that their positions are not the political winners they think they are.
May 31, 2010, 5:00 pmSammy Finkelman says:
The only thing is I don’t know if anyone will ever make the case that baldly. But it’s true.
May 31, 2010, 5:01 pmSgtDad says:
Kagan, as one may recall, signed off on a very bad brief in Rumsfeld v FAIR. All she was interested in was the result & she didn’t much care about what sophistry was used to justify it. I suspect that will be her style of judging, too.
May 31, 2010, 5:04 pmDodd says:
Now that’s just not fair at all, Mr. Baker.
SNL had a really funny Obama-China skit just a few weeks ago.
May 31, 2010, 7:10 pmKen Arromdee says:
By this reasoning, if there didn’t happen to be any illegal aliens around, the employers would be amiss in not going over to Mexico and personally smuggling some in and hiring them, on the grounds that otherwise they’re leaving vulnerable people to starve (in Mexico).
June 1, 2010, 12:30 amSCOTUSblog » Tuesday round-up says:
[...] Solicitor General’s office has come in for some recent criticism. At the Volokh Conspiracy, Stewart Baker and Jonathan Adler weigh in on the decision to recommend certiorari in U.S. Chamber of Commerce v. [...]
June 1, 2010, 9:19 amStan Smith says:
“Toto, I’ve got a feeling we’re not in Kansas anymore” …
June 1, 2010, 10:25 amClaire Solt PhD says:
I think the impact of cracking down on employers is overstated. I do not object to it, but a lot of people will be missed. Many illlegals work off the books and work for individuals, not companies. Domestics are in this category. If you want to extend this crackdown to every family who wants a nanny of an occasional worker, that is going too far.
If you listen to what AZ law enforcement says instead of misleading propagands on the left. The law enforcement people see this as a way of getting jurisdiction of those unfortunate people they find crammed into a truck or abused in a drop house.
June 1, 2010, 12:11 pmActually, this could greatly benefit peaceful Hispanics who do not appreciate having their neighborhoods shot up by the Frito Bandito, aka drug cartel. Watch them choke on the claim that people just come here to work. Some are criminals and they inflict their crimes on Hispanic neighborhoods.
Original Intent says:
The proper legal application of the form I-9 is explained perfectly well on originalintent.org under education in the article entitled “The Misapplication of Form I-9.”
Summary:
A. The DOJ and the INS only have Title 8 authority over;
1. entry into the country by aliens
2. status of the alien once in this country
3. the naturalization process
4. the actions of the U.S. government in carrying out each of the aforementioned duties.
B. Congress has no authority to make any person in the private sector, within a state of the Union, responsible for the enforcement of U.S. immigration law.
C. Congress is free to create laws that govern how the U.S. government will handle the employment of aliens in the federal work force.
D. Congress is free to create laws that govern how the governments of federal possessions or territories will handle the employment of aliens in their government work force.
E. Congressional Acts that address how the U.S. and its possessions and territories handle government employment may include requirements for the production of documents by anyone applying for governmental employment, whether aliens or citizens.
F. The Form I-9 is the form that the Department of Justice has designated for use by the U.S. government and the governments of the possessions and territories to verify that applicants for government jobs are eligible for governmental employment.
G. Even when §1324a is operative, the standard for wrongdoing is knowingly hiring an alien unauthorized for employment.
H. If accused of wrongdoing, the Form I-9 can be used to “get off the hook” while essentially admitting that the accused did knowingly hire an alien unauthorized for employment. This is called an “affirmative defense”.
I. All accusations of wrongdoing must be made against those persons who are subject to the regulatory control of the Department of Justice in reference to immigration matters. By 8 USC §1324a (and its regulations) Congress has brought all three branches of the U.S. government under DOJ regulatory control in reference to hiring alien employees.
J. Criminal actions for violation of §1324a apply to the same persons as the I-9 requirement, but the government must prove that the accused engaged in hiring unauthorized alien on a regular, repeated, and intentional basis.
K. No presumption of an applicant or employee being an alien unauthorized for employment can be inferred by a foreign appearance or accent.
L. No private firm, in a state of the Union, which is not obligated to follow §1324a by the terms of a contract with the state or federal government, is required to use any federal forms when hiring workers.
June 1, 2010, 2:36 pm