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Brewer: Napolitano changes 'moccasins' for Supreme Court immigration fight - Josh Gerstein: Brewer: Napolitano changes 'moccasins' for Supreme Court immigration fightDecember 08, 2010


The Supreme Court held oral arguments Wednesday on a legal challenge to Arizona's employer sanctions law, a measure passed in 2007 that allows state and local officials to shut down businesses who repeatedly hire illegal immigrants.

The Obama administration told the high court that that part of the law is unconstitutional or at least should be unenforceable because it intrudes on federal prerogatives. One awkward aspect of that argument is that Secretary of Homeland Security Janet Napolitano actually signed the law when she was governor of Arizona and she publicly defended it as constitutional and appropriate.

The state's current chief executive, Gov. Jan Brewer (R-Ariz.), flew to Washington to sit in on the Supreme Court session. Afterwards, she was asked what she made of Napolitano signing the law and then going on to oversee immigration enforcement for an administration fighting the state's law.

"She was wearing different moccasins at that time," Brewer quipped.

I asked Napolitano back in September about the Obama administration's decision to oppose part of the Arizona law she signed and defended.

"Well, it's in the Supreme Court now, so I'd rather not discuss a case that's pending," Napolitano told reporters at a breakfast hosted by the Christian Science Monitor. However, she defended a part of the law that requires employers in the state to use the federal e-Verify database to check the legal status of workers. Employers and immigrants rights activists are challenging that provision, but the Justice Department is not, as Napolitano noted.

"I think you have to have some method by which if youre going to require employers to ascertain the legal status or legal presence of their employees, for them to do that. I think a lot of the complaints I hear about E-Verify are based on kind of the earliest iterations of the technology," Napolitano said. "I know and knew that a lot of the complaints were misplaced. So, yes, I do believe any, as we move forward on immigration reform, you need to have a way to verify legal presence from an employment standpoint, because illegal labor is the major draw of this migration to the United States, and the only way to deal with that is to cut off the demand. So I do believe E-Verify is the way to do that."

Napolitano's aides told me earlier she did not recuse herself from discussions within the administration about the legal stance to take on the Arizona employer sanctions measure.

The Supreme Court battle Wednesday was considered a precursor to a likely future high court battle over the broader and more controversial illegal immigration crackdown measure Arizona passed this year at Brewer's urging, known as SB 1070.

Update: This post has been revised slightly to clarify the description of SB 1070.

Posted by Josh Gerstein 01:10 PM

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