Kagan has some explaining to do today

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Today the Senate begins consideration of the lifetime appointment of Elena Kagan to the U.S. Supreme Court.  Critics have said that her judicial record is non-existent, and there are few clues to how she will rule on the country’s highest court. However, her past actions do signal her views on one of the most important issues likely to come before the Court in the near future: a state’s right to play a role in the enforcement of immigration laws.

Here is what we know so far:

In 2007, the state of Arizona passed an immigration law that allowed it to revoke the business licenses of businesses that knowingly hire illegal immigrants. This provision was challenged but upheld in both the district court and even the notoriously liberal Ninth Circuit Court of Appeals.

Most recently, the Obama administration decided to challenge the 2007 Arizona immigration law and has asked the Supreme Court to overturn the provision. But what is a little known fact to most Americans is that it was Kagan who was the originator and driving force behind the Obama administration’s decision to ask the Court to overturn the Arizona immigration law. Kagan recently admitted as much in required disclosures to the Senate Judiciary Committee.

The administration argued that Arizona’s law revoking the business licenses of businesses that knowingly employ illegal immigrants is unconstitutional. But this argument is completely baseless as the two lower courts already confirmed.

Furthermore, still on the books today is a 1986 federal statute that created penalties for employers that knowingly employ illegal immigrants. This law specifically addresses the question at issue in the Kagan-backed litigation. Congress authorized states to revoke the business licenses of employers that intentionally hire illegal immigrants. So why has Kagan pursued such an aggressive, unconstitutional political agenda?

The views expressed in the court brief are troubling given the Obama administration’s weak record on enforcing federal immigration laws. Compared to fiscal year 2008, the number of administrative arrests by U.S. Immigration and Customs Enforcement (ICE) in employer-sanctions cases has fallen by 80 percent, the number of criminal arrests has fallen by 68 percent, the number of indictments has fallen by 74 percent, and the number of criminal convictions has fallen by 75 percent.

The Obama administration argues that it has increased the number of audits of employers. But audits do almost nothing to stop illegal immigration or discourage illegal hiring. Audits can result in fines, though employers consider them just the cost of doing business. Illegal workers are typically not arrested and are simply turned loose in the community to compete with U.S. citizens and legal immigrants for other jobs.

When ICE does engage in worksite enforcement actions, it allows the illegal workers simply to walk down the street to the next employer to seek employment.  If the federal government is abdicating its responsibility to enforce our immigrations laws, how can the administration protest when individual states seek to protect their residents?

Arizona is lawfully doing exactly what it has to do to protect legal workers and compensate for the failure of the Obama administration to enforce federal immigration laws. Kagan has shown that she is hostile to a states’ rights to enforce immigration laws and may be putting a liberal political agenda above the law and ahead of the people.

Can Kagan be objective and set aside her personal vides and support the U.S. Constitution, or will she be another rubber stamp for President Obama’s radical agenda? With the Supreme Court likely to be asked to rule on these issues soon—the American people deserve to know the answers to these questions. Even more so, the American people deserve to have Supreme Court decisions rendered by justices who adhere to the Constitution, not politics.

Rep. Lamar Smith is a Republican Member from Texas and Rep. Todd Tiahrt represents Kansas in the House of Representatives.