NRO

June 24, 2010

Two and Two Is Five [Mark Krikorian]

A number of House Republicans have written to Sen. Jeff Sessions requesting that he ask Elena Kagan about her role, as solicitor general, in the Obama administration’s request that the Supreme Court overturn Arizona’s 2007 immigration law. That measure required use of E-Verify for all employers in the state as a condition of having a business license. This is important in judging Kagan’s likely propensity for judicial activism, because even the Ninth Circuit upheld that Arizona law.

The administration is now claiming that the 2007 Arizona state law (signed by Janet Napolitano) is preempted by federal law, but when you look at the statute in question (8 USC 1324a), there is simply no way to argue such a thing in good faith. The relevant section says this:

Preemption

The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

I think “other than through licensing” is pretty obviously about, you know, licensing, which is what the Arizona law deals with. So the administration’s brief to the Supreme Court (which Kagan apparently helped draft) isn’t just mistaken or trying to bootstrap something by talking about emanations and penumbras. It’s an unambiguous example of bad faith, of trying to use the courts to overturn something explicitly permitted by statute. This is a brazen attempt at subverting democratic governance.

What’s next? When the 22nd amendment says “No person shall be elected to the office of the President more than twice,” it doesn’t really mean twice? Where Article 1, Sec. 2 says “No person shall be a Representative who shall not have attained to the age of twenty five years,” it doesn’t mean 25?

HERE