Kyl Shoots and Misses on Kagan Immigration Brief

The senator hopes to put Kagan on the spot for the administration's brief challenging (likely unconstitutional) another Arizona law. He ought to know she didn't write it.

By Seth Freed Wessler Jun 28, 2010

Day one of Elena Kagan’s confirmation hearings have wrapped up and she’s already heard a mouthful of criticism, some of which is plain inaccurate. In a notable example, Arizona Sen. John Kyl, while suggesting that President Obama picked Kagan because "he wants justices who will use the bench to advance progressive goals," pointed to a brief from the solicitor general’s office clarifying the government’s position on *U.S. Chamber of Commerce v. Candelaria*. The case, recently taken up by the Supreme Court, challenges a 2006 Arizona law that punishes businesses for hiring undocumented immigrants. In his comments, Kyl said he is "deeply troubled" by a brief released by the solicitor general calling for the Court to overturn the 2006 law, which takes business licenses away from employers found to have hired undocumented workers. But Kagan did not write the brief. The brief was released by an acting SG after Kagan’s recusal, following her nomination to the court. Perhaps Kyl was cribbing from the conservative [National Review Online’s Mark Krikorian]( (the head of the right-wing Center for Immigration Studies). Krikorian also lambasted Kagan last week for the *Candelaria* brief. In addition to being wrong about her responsibility for the brief, since it was issued after Kagan’s recusal, Krikorian’s argument is wrong substantively. He claims that the brief calls for the courts to rule against the federal "E-Verify" program for employers. In fact, the brief says the court should not rule on that program but rather let the "political branches" deal with it. The brief is about the implementation of *additional* state-level sanctions if an employer is found to have hired an undocumented immigrant. Krikorian is confusing the matter. What are actually at issue in the case are significant questions about the extent to which states can implement immigration laws beyond federal laws. The preemption question, of course, is also a [central part of legal challenges]( to the more recent and well known Arizona immigration law, [SB 1070]( According to [ImmigrationProf Blog,]( *Candelaria* raises three questions:

(1) whether an Arizona statute that imposes sanctions on employers who hire unauthorized immigrants is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens";

(2) whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary;

(3) whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of immigrants.

So the case is about whether Arizona can attach additional state level penalties on employers who are found to have hired undocumented immigrants. The federal government’s E-verify program, which is a database of names and social security numbers, already checks the immigration status of new hires. The Arizona law takes this program a step further by imposing an additional state level sanction. According to the [Center for American Progress](, which is [not really progressive on matters of immigration](

The acting solicitor general of the United States argued (correctly) that Arizona had overstepped its authority by establishing a parallel employer-sanctions law. He stated that the state law was explicitly preempted by federal law and that the underlying court decision should be reversed. This is an important signal and a critical first step in halting the growth of state and local immigration legislation. Given the current developments in Arizona and elsewhere in the country, the administration now has an opportunity, and a responsibility, to provide a more expansive articulation of its views on federal preemption of immigration regulation and enforcement by the states.

*Photo: Sen. Jon Kyl (R-AZ) during confirmation hearings for U.S. Supreme Court Justice nominee Elena Kagan on Capitol Hill June 28, 2010 in Washington, DC. (Photo by Brendan Smialowski/Getty Images)*