Supreme Court waits for Kagan


The Supreme Court is nearly ready to take up a challenge to a strict Arizona immigration law — not the new measure that authorizes the police to arrest suspected illegal immigrants, but an earlier law that would punish employers who knowingly hire them.

All the court needs now is for the Obama administration and its solicitor general, Elena Kagan, to weigh in.

The case may provide a preview of the how the high court will rule eventually on the new law. And it could offer a glimpse of how Kagan — a possible nominee for the Supreme Court — views this contested subject.

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.

So far, Kagan, a former Harvard Law School dean, has avoided taking a stand on most of the controversial legal issues that come before the high court. She does not have a record as a judge or legal advocate, and she did not write widely on legal topics, potentially making it difficult for Republicans to oppose her if she is nominated.

But it will be hard to avoid controversy if she takes a clear stand on whether states can enforce their own tough immigration laws.

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.

Washington attorney Carter G. Phillips, who filed the appeal in July on behalf of the chamber, said he is not surprised that the solicitor general has taken months to decide. “This is not an easy issue, and I suspect there are quite different views within the United States government on this,” he said.

Phillips noted that the first defendant in the original lawsuit — Janet Napolitano, then governor of Arizona — is now the Obama administration’s secretary of Homeland Security, in charge of federal immigration enforcement. She too has been mentioned as a candidate for the seat on the high court.

But Phillips thinks the court should take up the issue, regardless of what the solicitor general decides. “The general rule has been that immigration is a matter left exclusively to the federal government,” he said. “The court needs to weigh in on this and put a stop to the states and localities churning out new anti-immigration measures of their own.”

The Legal Arizona Workers Act of 2007 was intended to slow illegal immigration by punishing employers who hired undocumented workers. It would impose what some call the “business death penalty” for companies that twice violate the law. They could lose their license to operate as a business.

Employers, civil rights groups, labor unions, the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund went to federal court in Phoenix to challenge the law. They argued that federal law blocks, or “preempts,” such state measures.

They lost, however, before a federal judge, and in a 3-0 ruling by the U.S. 9th Circuit Court of Appeals. The judges said that Congress did not take away the power of states to enforce their own laws.

Appeals Judge Mary M. Schroeder said that “because the power to regulate the employment of unauthorized aliens remains within the state’s historical police powers,” Arizona can revoke the business licenses of employers who violate the law.

That, in turn, led to the pending appeal in the case of Chamber of Commerce of the United States et al. vs. Candelaria.