How Will Elena Kagan Approach Immigration If Confirmed?

kagan judicial experienceIf Solicitor General Elena Kagan is confirmed to take the seat of Justice John Paul Stevens on the Supreme Court, one of the cases that she will likely be confronted with is a constitutional challenge to Arizona’s recently passed immigration law. President Barack Obama has condemned the law and Attorney General Eric Holder is weighing a possible federal lawsuit against the state. Kagan could have a direct impact on the role the federal, state, and local governments play in enacting and enforcing immigration laws. Her potential confirmation could also have a more indirect effect on how the nation’s immigration population is treated and who is and isn’t protected by the U.S. Constitution.

As Solicitor General, Kagan has issued opinions on two separate cases which shed some light on how she has approached the immigration issue in the past. One is an amicus brief filed by Kagan on behalf of the United States in Padilla v. Kentucky. In the brief, the government agreed with Padilla that the Kentucky Supreme Court erred in holding that a criminal defense lawyer giving incorrect advice about the immigration consequences of the plaintiff’s plea is not a sufficient reason to reopen a case. In other words, the Kentucky court argued that Jose Padilla, a lawful permanent resident who was charged with drug offenses, could not withdraw his guilty plea even though his lawyer gave him bad immigration advice.

According to Kagan, an attorney doesn’t have to give immigration advice. But if he or she does, that person “has a duty to avoid doing so incompetently.” “Professionally incompetent advice,” according to Kagan, “can support an ineffective-assistance claim.” However, Kagan agreed that Padilla could not withdraw his own plea because the overwhelming evidence against him suggested “that a rational defendant would have pleaded guilty even after receiving correct information.” Kagan’s opinion in this case is significant because it shows that she doesn’t believe that the whole criminal justice system should be rearranged to give immigrant defendants immigration advice, but when immigration advice is given, the Sixth Amendment protects an immigrant’s right to effective legal counsel. The fact that she did not let Padilla — a Vietnam war veteran –o ff the hook demonstrates that her opinion had little to do with judicial empathy and more to do with pragmatic jurisprudence.

The second immigration case that Kagan has weighed in on is Kucana v. Holder, a case aimed at resolving the question of whether courts have jurisdiction to review decisions made by the Board of Immigration Appeals (BIA). In her amicus brief, Kagan agreed with petitioner Agron Kucana (an Albanian facing deportation who originally was ordered deported because he had overslept and missed his asylum hearing), that judicial review is available in such cases. Yet, Despite citing Kagan the Supreme Court’s traditional presumption in favor of preserving judicial review of administrative action, Kagan still recommended that the Court deny review of Kucana’s case, arguing that his claim was baseless on the merits. Once again, Kagan did not support the specific case of the immigrant petitioner, but she did side with his underlying argument. This is significant because administrative errors can often lead to a wrongful deportation that puts an asylum applicant in perilous danger.

These two cases suggest that Kagan takes a relatively neutral approach to immigration cases, but still appears to hold that immigrants — regardless of their status — are protected by the U.S. Constitution. However, the cases do not carry any direct implications for how Kagan would approach the constitutionality of Arizona’s immigration law. A third case (Chamber of Commerce of the United States v. Candelaria), which Kagan has yet to weigh in on, undoubtedly would.

andreaThe Supreme Court has been waiting for months on Kagan to file a brief giving the administration’s view on whether Arizona’s sanctions on employers who hire undocumented workers conflicts with federal immigration law — a concept that’s central the constitutionality of Arizona’s most recent immigration law. The justices need the brief some time in May so they can act before the court’s term ends in late June. The legislation in debate was signed into law by current Department of Homeland Security Secretary Janet Napolitano when she was governor of Arizona.

Andrea Christina Nill

Crossposted with permission from the Wonk Room.


  1. Rodger Wesch says

    The first paragraph is error in stating that “If Kagan is confirmed to take the seat of Justice John Paul Stevens”. It is correctly a vacant seat on the US Supreme Court and belongs to the people, not to any particular justice.

  2. Marshall says

    How can you hope for a state law that follows federal law almost fact to fact will be found unlawful? Do you not believe in the federal law and want it found unconstitutional? Progressive logic is so hard to follow.


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