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Latino Daily News

Tuesday July 6, 2010

HS-News Analysis:  What Might Nominee Elena Kagan’s Thinking Be on Immigration?

At the end of this month, the U.S. Senate will vote on the nomination of Solicitor General Elena Kagan to the Supreme Court after weeks of hearings.  There was much said about the military on college campuses and her position on abortion but the current hot-topic – immigration – was notably absent.  Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF) remarked that senators did not ask “enough questions” to even gauge a position on the immigration issue, while he felt her record is “devoid of a strong indication of [her] views.” 

Nonetheless HS-News analyzed numerous documents, cases and opinion papers to conduct its own analysis and cautiously predict what nominee Kagan might do when cases dealing with immigration come before the court which is certain to happen and in short order.  If and when Kagan is confirmed she will be the youngest Justice and her influence on issues will be felt for a long time. 

As a Supreme Court Justice she will provide a front-line voice on the role federal and state governments play in creating and enforcing immigration laws.  The Court’s decisions will shape the direction immigration enforcement will take and define the scope of a state’s power to impose their will and their direction on federal legislation.  In June of this year the court agreed to hear a challenge by Arizona business interests against a 2007 state law banning the employment of illegal immigrants and fining employers for those hiring’s.  The Chamber of Commerce v. Candelaria matter will be heard in October and the decision of this case will more than likely affect Arizona’s SB1070 law and other state’s similar legislation. 

Many critics cite Elena Kagan’s lack of court experience and few legal opinions on which to analyze her position on many issues, including immigration.  However, over 90,000 documents were submitted by the White House to the nomination committee to provide such an insight.  Some of the documents that touch upon immigration-related topics, written by Kagan, were recently reviewed by HS-News staff.  They include cases she looked at as a law clerk for Justice Thurgood Marshall and memos authored by Kagan in her role as Associate Policy Director and White House counsel under President Bill Clinton.  Even in her most recent role as Solicitor General she has filed opinions on immigration matters on behalf of the U.S. government.  As Solicitor General she presents the government’s view on issues the government wants to express its opinion on but is not a direct party to.   


When the U.S. v Shonde case came before the Supreme Court in the 1986, it needed to decide whether or not to review the case.  A lower court judge had dismissed an immigrant’s guilty plea to minor charges opining it could damage his legal residence application; a higher court felt the judge had overreached.

Kagan agreed that the lower court Judge had overreached but viewed the decision “as an equitable result” at “no great cost to the Republic” therefore counseled Justice Marshall that the Supreme Court should let the decision sit and not hear the case and it did not.  It can be derived that Kagan felt an immigrant’s legal status application was the “equitable result”.  Her practical nature comes through here, the law broken by Shonde was minor and it’s not being prosecuted did not harm anyone. 


Elena Kagan worked in the Clinton Administration from 1995-1999 and during her tenure provided opinions in memorandums that argued against state and local government overreaching into federal legislative terrotority specifically on issues of religious freedoms, which might indicate that Kagan would not let Arizona’s immigration law supercede that of the federal government.  She also endorsed a legal strategy to avoid the Supreme Court ruling against affirmative action which would have been too radical of a decision.

When the new immigration laws of the 1990’s reduced the number of suspended deportations for deportable aliens Kagan counseled for a humane approach for those most affected by the reduction.  Kagan wanted to “provide relief to Central American migrants” in the U.S. as asylum seekers and had three options before her.  To either do nothing, take an immediate yet temporary action or seek permanent legislative reform.  In crafting her counsel to President Clinton she recognized the burden on these immigrants and wanted to craft a response that involved seeking consensus while promoting a permanent solution – eliminate the reduction of suspended deportation - a benefit to the immigrant community.  Another example of Kagan’s idealist tendency’s was her advice on the department of Immigration & Naturalization (INS) restructuring. 

When the Clinton administration was considering to dismantle INS, now part of Homeland Security,  Kagan recommended incremental reform and the separation of immigration services and immigration enforcement which reflects a practical yet empathetic side to the nominee.  She clearly understands the different mandates of INS, offering immigrant services versus enforcing the laws that might deport them.  When looking at the issue of H-1B visas and the shortage of technology workers in the U.S. she took a fair and balanced approach.  First recommending that all be done to provide the jobs to Americans and then raise the number of visas for foreign workers. 


As Solicitor General for the current administration Kagan has filed two opinion briefs on immigration cases:  Padilla v Kentucky and Kucana v Holder.  Padilla was offered faulty legal advice by his counsel that exposed him to deportation when entering a pleading guilty.  He tried to reverse his guilty plea based on not being told the deportation risks.  While agreeing that Padilla was entitled to effective counsel Kagan did not go as far to believe that every defendant is entitled to immigration advice, however when it is sought and given it must be competent.  Padilla did not formally seek the advice hence his guilty plea stood - a very pragmatic and middle-of-the road approach which is a trademark of Kagan’s decision making.  In the Kucana case, Kagan opined that decisions made at administration hearings like those at deportation hearings can be reviewed by a higher power - the courts, hence ensuring that immigrants have a another level of protection when orders of deportation are given.  In both cases you see that Kagan views immigrants, regardless of legal status, entitled to protection by the U.S. constitution.

In conclusion we can expect nominee Elena Kagan to view immigrants as parties that are offered protection under the U.S. constitution first and foremost.  Historically she has promoted a fair and humane treatment from a legal perspective of immigrants regardless of status.  From the materials reviewed, HS-News sees her as someone who will seek consensus versus leading the opinion and balance competing objectives.  Since there has been no legal precedent for state’s to craft immigration legislation it is doubtful Kagan would support such a radical approach, here her modest approach to new laws will become evident.  Immigration is one area of law that has been dominated by the federal government and Elena Kagan will probably vote to keep it that way.


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