The Solicitor General Lays an Egg

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 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.

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.