Bench Memos

Elena Kagan and Immigration

At the Volokh Conspiracy, Stewart Baker, a former senior official at DHS and an experienced Supreme Court litigator, is appalled by the amicus brief that the Solicitor General’s office filed last week regarding the petition for certiorari in Chamber of Commerce v. Candelaria.  The petition involves the Legal Arizona Workers Act, which (as Baker explains) is a 2006 Arizona statute, signed into law by then-Governor Janet Napolitano, that (1) imposed state penalties on employers who hire illegal workers and (2) required businesses in Arizona to use E-Verify.  The brief argues that the Court should grant review on the question whether federal law preempts the state penalties and should rule that it does.

I’ll highlight here Baker’s harsh criticism of Elena Kagan’s presumed role in the matter:

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. 

Most Popular

White House

Obama Wrote Trump a $73 Million Check

The New York Times’ big exposé on President Trump's tax returns flags some things that may be dodgy but mainly it just confirms what everybody (including Trump) has always said -- there are a lot of loopholes in the tax code that a savvy operator can exploit. Whose fault is that? The system long predates ... Read More
White House

Obama Wrote Trump a $73 Million Check

The New York Times’ big exposé on President Trump's tax returns flags some things that may be dodgy but mainly it just confirms what everybody (including Trump) has always said -- there are a lot of loopholes in the tax code that a savvy operator can exploit. Whose fault is that? The system long predates ... Read More

BLM Becomes the PLO

I am inclined to think that the Palestinians have some legitimate beefs, historically speaking. I just don’t care very much. You blow up children in pizza shops, and your priorities go right to the bottom of my global humanitarian to-do list. Palestinians want a state? I wouldn’t lend Mahmoud Abbas a cup ... Read More

BLM Becomes the PLO

I am inclined to think that the Palestinians have some legitimate beefs, historically speaking. I just don’t care very much. You blow up children in pizza shops, and your priorities go right to the bottom of my global humanitarian to-do list. Palestinians want a state? I wouldn’t lend Mahmoud Abbas a cup ... Read More
Law & the Courts

On Judge Barrett, Let’s Tell the Truth

Once when I was a kid, my dad held up three fingers and asked, “Does this two look like a three?” Little did I know that this attempted sleight of hand would become a regular feature of the process for appointing federal judges. Watch for it in the days ahead as the Senate considers President Donald Trump’s ... Read More
Law & the Courts

On Judge Barrett, Let’s Tell the Truth

Once when I was a kid, my dad held up three fingers and asked, “Does this two look like a three?” Little did I know that this attempted sleight of hand would become a regular feature of the process for appointing federal judges. Watch for it in the days ahead as the Senate considers President Donald Trump’s ... Read More