More on the SG’s Brief in U.S. Chamber of Commerce v. Candelaria

Like Stewart, I am interested in the Solicitor General’s decision to file a brief recommending cert in U.S. Chamber of Commerce v. Candelaria.  I recommend readers to his post (and the comment thread), even if I don’t agree with every point.  Here are my initial thoughts on the SG’s filing.

The Supreme Court’s CVSG request put the Administration in an interesting position.  The law in question was signed by then-Governor Janet Napolitano, who is now Secretary of Homeland Security, and therefore responsible for overseeing U.S. immigration policy.  So if the Justice Department is to now argue that the law is preempted, what does that say about the judgment of the nation’s top immigration official?  And if the Justice Department does not argue that the law is preempted, how would that effect potential litigation against Arizona’s new immigration law?  These issues were explored in an LA Times article I blogged about here.

The political calculus is further complicated because many liberal legal types were quite critical of the Bush Administration’s aggressive posture on preemption questions. The Obama Administration, many hoped and expected, would be less aggressive in urging preemption of state regulatory efforts and tort remedies.  Aggressive pro-preemption arguments in Candelaria could be in tension with anti-preemption arguments elsewhere.  Indeed, in another CVSG brief filed on Friday, the SG’s office argued against cert, and against preemption, in Golden Gate Restaurant Association v. County of San Francisco — thereby reversing the Bush Administration’s position below.  Based on my understanding of the case, and a quick read of the brief, this case is at least as cert. worthy as Candelaria.

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

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

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