Legal Commentary

What Will Kagan Say about AZ Immigration Law

By Jonathan H. Adler

While controversy rages over Arizona?s recently passed illegal immigration law, the Supreme Court is considering whether to hear a legal challenge to an earlier Arizona immigration measure signed into law by then-Governor Janet Napolitano, and wants to hear the Solicitor General?s views.  As the LA Times reports:

In November, the justices asked Kagan to file a brief giving the administration?s view on whether Arizona?s sanctions on employers who hire illegal workers conflicts with federal immigration law. Months have passed, and no word has come from her office.

The justices have made it clear that they need to hear sometime in May so they can act on the appeal before the court?s term ends in late June.

But the timing of this controversy could not be more awkward for Kagan, since she is also hoping to emerge this month as President Obama?s nominee to replace retiring Supreme Court Justice John Paul Stevens. . . .

She could urge the justices to overturn the Arizona law on the grounds that it conflicts with federal responsibility over immigration, and thereby provoke the wrath of conservatives across the nation. Or, she could say the Arizona measure does not interfere with federal immigration law ? a stand that would provoke outrage among Latinos, civil libertarians and the U.S. Chamber of Commerce, which sponsored the appeal to the high court.

As I noted below, the case is U.S. Chamber of Commerce v. Candelaria, and the cert petition is here.

Full post as published by The Volokh Conspiracy on May 01, 2010 (boomark / email).