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.