Legal Commentary

The SG?s Egg Hatches

By Stewart Baker

Not long ago I criticized the SG?s submission to the Court on whether to grant cert in Chamber of Commerce v. Candelaria. I thought it was a remarkably bad brief in a bad cause. But even a bad brief from the SG can be persuasive when it asserts a federal interest in preempting a state law touching on immigration .

Today the Court granted cert.

I continue to think that this case will raise political/policy problems for the administration, which essentially has to say that there?s a federal interest in keeping the penalties for hiring illegal workers so low that they don?t actually deter the hiring of illegal workers. That?s a perfectly respectable preemption argument, but a remarkably tone-deaf political argument.  And it?s now one that the SG will have to pursue with vigor in the full glare of public view.

Perhaps more difficult still is the problem created for the Administration by the Court?s decision to grant cert without limiting the questions presented. The second question ? whether E-Verify can be mandated under state law ? is far more significant than the first for those of us who?d like to see effective enforcement of immigration law. The administration tried to have that issue both ways ? saying that state mandates were a problem but that the question was not ripe for Court review and urging a limited grant so it could to avoid having to attack state mandates at this time.

Now the Administration will have to attack an Arizona law that Secretary Napolitano signed, and do its best to cripple a program in which both the last administration and this one have invested hundreds of millions of dollars. 

Blue dogs, please call your office.

Full post as published by The Volokh Conspiracy on June 28, 2010 (boomark / email).