Supreme Court upholds Arizona law punishing illegal immigrant hiring

May 26, 2011
Supreme Court upholds Arizona law punishing illegal immigrant hiring
By Michael Doyle | McClatchy Newspapers

WASHINGTON — The Supreme Court on Thursday upheld an Arizona law that harshly penalizes businesses for knowingly hire illegal immigrants.

In a ruling that could exert pressure on Congress and other states, the court — in what amounts to a 5-3 decision — declared that Arizona’s law fits within the state’s powers and does not infringe on federal turf.

“Arizona hopes that its law will result in more effective enforcement of the prohibition on employing unauthorized aliens,” Chief Justice John Roberts, Jr. wrote, adding that “the Arizona regulation does not otherwise conflict with federal law.”

The highly anticipated decision keeps intact the 2007 Legal Arizona Workers Act. Employers could have their business licenses suspended or revoked for hiring illegal immigrants, under the law.

The law also requires Arizona employers to use a federal program called E-Verify to check the immigration status of potential workers. Justices likewise upheld this provision, with Robert calling it “entirely consistent” with federal law.

The decision affirms the 9th Circuit Court of Appeals, which had likewise upheld the state law. It is a defeat for the politically powerful U.S. Chamber of Commerce and the Obama administration, both of which had opposed the Arizona law.

“Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers,” Justice Stephen Breyer wrote in dissent.

Breyer, joined by justices Ruth Bader Ginsburg and Sonia Sotomayor, added that fearful employers may now “erect ever stronger safeguards against the hiring of unauthorized aliens, without counterbalancing protections against unlawful discrimination.”

Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Clarence Thomas joined in the most of the majority opinion.

Justice Elena Kagan did not participate in the case, because of her prior job as the Obama administration’s solicitor general.

The decision did not involve an even more controversial immigration measure passed by Arizona lawmakers. That measure requiring police to check the immigration status of individuals in certain circumstances remains under separate legal challenge, and could likewise eventually reach the Supreme Court.

Both laws reflect Arizona’s effort to deal with the state’s share of the estimated 12 million illegal immigrants currently residing in the United States. Congress has been stymied in recent years every time lawmakers try to deal comprehensively with immigration policy.

Arizona legislators explicitly cited their frustration with the federal gridlock, when they passed the 2007 law. The frustration is widely shared in other states, where legislators in 2009 introduced more than 1,500 immigration-related bills, quintuple the number introduced in 2005.

The Arizona law established a tiered set of penalties, ranging from a 10-day suspension to permanent revocation of the business license. Without a license, employers can’t do business in Arizona.

“You…essentially have the death penalty to business,” attorney Carter Phillips, representing the Chamber of Commerce, told the Supreme Court during oral argument last December.

The business group challenged the law, as part of a broad alliance that also included the Obama administration and advocacy groups including the National Council of La Raza.

From the other side, 13 states including Missouri, Kansas and South Carolina allied themselves with Arizona in citing states’ traditional authority over business licensing. The ruling Tuesday could spur these states and others from wading deeper into immigration policy; or, it might spur more creative lawmaking.

Congress prohibited the employment of illegal immigrants under the 1986 Immigration Reform and Control Act. The law specifically preempted states from taking civil or criminal actions against employers who hired illegal immigrants, though it left a small loophole to permit “licensing” actions. The decision Thursday relies on this provision concerning licensing.

“Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states,” Roberts wrote.

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