- The Washington Times - Thursday, September 30, 2010

The Supreme Court’s upcoming term will include the most emotionally charged freedom-of-speech case in recent history along with the usual assortment of high-profile challenges focusing on hot-button issues such as immigration and prosecutorial misconduct.

But the term, which begins Monday, also is notable for what it often will not include, namely new Justice Elena Kagan.

Justice Kagan, who won confirmation this summer to replace retired Justice John Paul Stevens, has said she must step aside for about half the roughly 50 cases the court has so far agreed to hear this term. It is not uncommon for justices to have to step aside when the court hears cases with which they had some previous involvement, but Justice Kagan’s unusually high number is a result of her previous job as solicitor general.

It is unclear how many more, if any, recusals Justice Kagan will have this term, or how many she will have in subsequent terms, though the number is likely to be lower in ensuing years. With such a large number of recusals, some cases could end in 4-4 ties, which means they would retain a lower court’s ruling.

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, tried to avoid that scenario by proposing a bill this week that would allow retired Justices Stevens, Sandra Day O’Connor and David H. Souter to fill in for such cases.

One of this term’s high-profile cases is a challenge to an Arizona immigration law enacted in 2007. Others involve prosecutorial misconduct in Louisiana, and how far protesters can go in demonstrating at funerals.

In the Arizona case, Chamber of Commerce of the United States v. Whiting, a group of seemingly strange bedfellows — business owners, unions and civil libertarians — have challenged a state law requiring employers to access a federal database to ensure job applicants are eligible to work in the U.S. The law also imposes sanctions that could force employers out of business.

At issue is whether federal law “pre-empts” the Arizona law through the Constitution’s Supremacy Clause, which says state law can’t contradict federal law. Specifically, those opposing the Arizona law say it contradicts Congress’ intent that the use of the E-Verify database is strictly voluntary, not mandatory.

The critics similarly argue that the Arizona law goes too far in its use of sanctions, as only the federal government can impose such penalties.

The state argues that while Congress made participation in E-Verify voluntary, it did not preclude states from passing laws making it mandatory. The state further argues that its sanctions are permissible because they are imposed through “licensing laws,” which Congress has said don’t conflict with federal law.

The case will be closely watched because state legislatures nationwide have passed hundreds of immigration laws during the past five years, according to the National Conference of State Legislatures.

The passage of such bills is frequently acrimonious, as illustrated by a portion of the Arizona law being challenged that states: “Because of Congress’ failure to act, states like Arizona have no choice but to take strong action to discourage the further flow of illegal immigration through our borders.”

The issue of states passing immigration laws became even more pronounced this year with the passage of an even more controversial Arizona law giving state law enforcement officers broad authority in enforcing immigration law. The federal government has filed a lawsuit against Arizona saying the new law violates the Supremacy Clause.

Many had hoped the Arizona E-Verify case would provide insight into how the high court will handle other state immigration laws. But the case may not do that.

“The court has been quite clear that it looks at pre-emption within the four corners of the particular case being challenged,” said Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute.

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