Cross-posted at’s “On the Docket”

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 “permissible” for Arizona to require all employers – before hiring new employees – to utilize the federal government’s E-Verify computer program to determine whether the employee is authorized to work in the U.S. While the federal government itself encourages employers to use E-Verify, it does not require them to do so.

In both of its recent immigration briefs, DOJ argued that the challenged Arizona statutes “conflict” with federal law because they impose sanctions that go beyond the sanctions imposed under federal law. DOJ insisted that a conflict exists (and thus that the state laws are preempted) even though the undisputed purpose of the Arizona laws is to step up enforcement of federal immigration law.

DOJ’s strongly pro-preemption stance in the Arizona cases contrasts sharply with the anti-preemption position it has taken in cases in which the plaintiffs’ bar is attempting to invoke state tort law to obtain damage awards from companies whose products are manufactured in accordance with federal safety regulations. Most prominent among these tort cases is Williamson v. Mazda Motor of America, a Supreme Court case in which a car manufacturer is being sued for having placed lap-only seatbelts (i.e., not lap/shoulder seatbelts) in some of its rear seats. Federal regulators conducted a cost-benefit analysis and determined that lap/shoulder seatbelts were not cost-justified in certain rear seating positions, and thus they determined that such seatbelts would not be required under federal highway safety laws. The question before the Supreme Court is whether a state tort law requirement that a car manufacturer must install rear-seat lap/shoulder seatbelts conflicts with (and thus is preempted by) the federal government’s determination that such seatbelts are not required under federal law because they are not cost-justified.

California courts hearing the Williamson case determined that the tort suit was preempted and tossed it out of court. But DOJ (which is not a party in the case) filed a brief in August that refused to defend the prerogatives of federal regulators. The brief advanced a strongly anti-preemption position urging the Supreme Court to reverse. DOJ readily conceded in its brief that federal highway safety officials had carefully considered the issue and had determined that rear lap/shoulder seatbelts should not be required. But it nonetheless argued that California should be free to reach the opposite conclusion because “a determination that a federal agency’s decision not to impose a particular regulation was ‘intentional and carefully considered’ is not enough to show that the agency also precluded the States from imposing the same requirement.”

The inconsistency between the position adopted by DOJ in Williamson and the position it took in the Arizona immigration cases is readily apparent. If, as DOJ argued in Williamson, a determination by federal officials that a specific regulation is unwarranted under federal law does not mean that states are barred from adopting the same regulation, then the Arizona immigration statutes cannot be deemed to conflict with federal law. Thus, although Congress – in its 1986 statute that sought to prevent illegal aliens from working in this country – did not make it a crime for illegal aliens to seek employment, DOJ’s Williamson brief suggests that states are free (as did Arizona) to criminalize solicitation of employment.

Precisely when a state law should be deemed impliedly preempted by federal law is an often-complicated legal issue that raises sensitive federalism issues. But it should not be too much to expect top federal lawyers at DOJ to provide consistent views on that issue in their court filings. DOJ lawyers have failed to live up to that standard. Instead, they appear to vary their responses to suit the varying needs of the administration’s political constituencies.