Washington, DC – Fourteen members of Congress sent a letter today to Senate Judiciary Committee Ranking Member Jeff Sessions asking him to question Supreme Court nominee Elena Kagan about her role in the Obama administration’s decision to ask the Court to overturn a 2007 Arizona immigration enforcement law. 

The law allowed the state to revoke the business licenses of businesses that knowingly hire illegal immigrants. The provision was challenged but upheld in both the district court and the Ninth Circuit Court of Appeals. However, the Obama administration recently recommended that the Supreme Court review the case, Chamber of Commerce v. Candelaria (No. 09-115).

The members wrote, in part, “We write to express our concern about the Obama Administration’s recent challenge to a 2007 Arizona law that requires all Arizona employers to use the federal government’s E-Verify program to check the legal status of new employees. 

“On May 28th, 2010, the Obama Administration submitted an amicus brief to the Supreme Court claiming certain provisions of the Legal Arizona Workers Act are pre-empted by Federal law.  After careful review of the relevant Federal law it appears the Administration has no legal foundation on which to base their recommendation and is, in effect, asking the Supreme Court to engage in judicial activism.  We are concerned that this is another end run around the proper legislative process, attempting to accomplish in the courts what cannot be done at the ballot box.

“This law has already withstood challenge in both the District Court of Arizona and the Ninth Circuit Court of Appeals.  Both courts recognized that Federal law expressly allows States use of licensing laws to ensure that employers follow the Federal law prohibiting them from hiring illegal aliens. 

“It has come to our attention that Supreme Court nominee Elena Kagan played a key role in authorizing the brief.

“We are concerned that this is another instance in which Ms. Kagan’s legal reasoning took a backseat to her personal political philosophy, and we urge you to question her about this issue during her upcoming Supreme Court confirmation hearing.”

The letter was signed by Representatives Lamar Smith (TX-21), Gary Miller (CA-42), Jack Kingston (GA-01), Jim Sensenbrenner (WI-05), Brian Bilbray (CA-50), Phil Gingrey (GA-11), Paul Broun (GA-10), Todd Tiahrt (KS-04), Steve King (IA-05), Jerry Moran (KS-01), Sam Johnson (TX-03), Ed Royce (CA-40), Dana Rohrabacher (CA-46) and Trent Franks (AZ-02).