Sep. 28 2010 - 3:20 pm
DOJ Blowing In Political Wind On Federal Preemption
Posted by Rich Samp

Department of Justice lawyers have been busy in the past month, filing briefs in a wide array of cases raising claims that a state law is preempted because it conflicts with federal law, including one just last Friday in DOJ’s high-profile lawsuit challenging the new Arizona immigration statute. One would hope that our nation’s top lawyers would adopt a consistent position on the doctrine of preemption, which implicates sensitive issues regarding federal-state relations. Unfortunately, recent DOJ briefs appear to be based all too often on political considerations, shifting between a pro- or anti-preemption view depending on which position best advances the interests of the Administration’s political allies.

DOJ took a strongly pro-preemption position in a brief filed last Friday in the federal appeals court in San Francisco in connection with its challenge to the statute adopted by Arizona for the purpose of beefing up enforcement of immigration laws. It did likewise in a September 9 Supreme Court brief filed in a case that challenges a separate Arizona immigration statute, Chamber of Commerce v. Whiting. DOJ’s pro-preemption stance in Whiting reverses a position it took in a 2009 appeals court brief, which stated that it was “permissibleâ€