Cross-posted by at On the Docket

When addressing federal preemption issues (i.e., claims that state regulation is barred because it conflicts with federal law), the U.S. Department of Justice has been all over the map.  As detailed in this prior blog post, DOJ has adopted an anti-preemption stance in state-law tort cases filed by its allies in the plaintiffs’ bar.  But it has advanced strongly pro-preemption positions in cases challenging efforts by States to control illegal immigration.

In an immigration decision issued yesterday, the Supreme Court served notice that it is watching DOJ legal filings for potential inconsistencies on preemption issues.  In rejecting DOJ’s argument in Chamber of Commerce v. Whiting that an Arizona statute requiring employers to verify the work-eligibility of prospective employees using the E-Verify system was preempted by federal law (under which participation in E-Verify is optional in most instances), the Court noted that the Obama Administration had adopted an inconsistent position in a 2009 federal court filing.

The 2009 case arose in a different context:  a challenge to a federal Executive Order making E-Verify mandatory for all federal government contractors.  Nor is DOJ in any sense legally bound by what it told a federal district court almost two years ago.  The Supreme Court’s citation to the 2009 brief nonetheless made clear that inconsistent DOJ legal positions regarding preemption issues will not go unnoticed.  As the Court  pointed out, if Congress permitted the President to make E-Verify mandatory for government contractors when hiring employees, then it cannot also be true (as DOJ argued in Whiting) that Congress intended to preempt all efforts to require employers to participate in E-Verify.

The lesson should be obvious.  DOJ risks losing its credibility with the Court unless it makes every effort to ensure that its views on important legal issues remain consistent from case to case.