In a separate brief Elizabeth Wydra of the Constitutional Accountability Center argued that for years before Padilla was decided, changes in immigration law made deportation a more pervasive tool in immigration cases. As a result, she wrote, "prevailing norms of professional practice" have long required lawyers to advise their clients about possible deportation, thereby making Padilla retroactive.
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Elizabeth Wydra, chief counsel for the liberal Constitutional Accountability Center, says any Republican president would be “foolish” not to have Clement “at the top or near the top” of a list of potential justices.
Two constitutional law experts, John C. Eastman and Elizabeth B. Wydra, provide differing prognoses in this Q&A debate.
The criticism “has been overstated and at times unfair,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, a liberal legal think tank. “His arguments, along with the briefs filed in the health care and Arizona cases give the justices every argument they need to side with General Verrilli in both cases. While I wish he would have emphasized the Constitution's text and history more, because those sources are so strongly on the Administration's side in both cases, that is a strategic judgment call more than a criticism."
Should the court make a sweeping ruling against the government, says Kendall, the "hallmarks of the 20th century", including the social security system, would be under threat. "We would be in a dramatic new age where the Supreme Court has decided that the federal government can no longer act to solve national problems."
State laws like Arizona’s SB 1070 undermine the uniformity of federal foreign relations policy and can harm relations with foreign countries by inviting retaliation against U.S. citizens abroad. This is not a particularly novel argument. It appears in briefs filed by the Constitutional Accountability Center and by former Solicitor General Seth Waxman on behalf of former officials at the departments of State and Defense, as well as in a brief filed by former Democratic members of Congress.
"The [C]onstitution is very clear that the nation must speak with one voice with respect to immigration policy," said Elizabeth Wydra, Constitutional Accountability Center Chief Counsel.
"[T]here appeared to be a majority of justices who had serious problems with other provisions of the law, including criminalizing failure to carry immigration papers and criminal sanctions for unauthorized migrants who seek work in Arizona,” says Elizabeth Wydra, chief counsel of the Constitutional Accountability Center.
For politicians who claim to love the Constitution, Arizona Governor Jan Brewer and deposed former state senator Russell Pearce appear to have no problem disregarding it when it suits their purposes.
On April 23, 2012, CAC President and Founder Doug Kendall was a guest on the Thom Hartmann Program to discuss Arizona’s draconian immigration law heading to the Supreme Court.
"It is another example of the struggle between the federal government and the state governments over the Constitution's allocation of powers," said constitutional law expert Elizabeth Wydra, who filed an amicus brief backing the Obama administration.
The architects of our Constitution, like James Madison and Alexander Hamilton, made it absolutely clear that the federal government has the exclusive power to regulate immigration, and to consider the foreign policy implications of how we treat noncitizens within our borders.