States and localities angling to crack down on illegal immigration more aggressively than the federal government got indications Wednesday that the Supreme Court may be sympathetic to their efforts, despite complaints from businesses that such a scheme would subject them to a patchwork of differing rules.
The legal questions are about state preemption, but the justices’ rulings on that issue will be the opening salvo in a lengthy discussion at the highest levels about whether states can get tough on illegal immigrants. The Arizona law under scrutiny in Wednesday’s oral argument, which involves employer verification, isn’t as sweeping as a broad immigration enforcement law the state passed earlier this year. But the high court’s view of Arizona’s narrower employer-focused law will suggest how much leeway states have in passing laws similar to Arizona’s now infamous immigration law.
A handful of governors and state legislatures want to consider “copycat” immigration bill’s similar to those in Arizona. Who can blame them? Arizona’s broader immigration law made national headlines and put the federal government on the defensive to the extent it had to sue the state over it. (That case is still pending.) Politically, Arizona’s assertive stance has been a win as well. Governor Jan Brewer found herself in the national spotlight after the law passed, assuring her reelection in November despite some shaky public performances earlier in the year.
Predictably, the high court’s conservative justices expressed sympathy for Arizona’s law requiring employers to verify the status of their workers. The more liberal justices asked a range of questions that could lead to arguments for striking down Arizona’s law, but legal ambiguities in a 1986 federal immigration law suggest that such a clean decision is unlikely.
Complicating matters, Associate Justice Elena Kagan is prevented from ruling in the case because of her prior role as solicitor general in the Obama administration. The Justice Department sided with the U.S. Chamber of Commerce in the case, arguing that the Arizona employment law should be struck down. At a minimum, the court could tie 4-4, meaning the Arizona law would stand based on a lower court decision.
As part of a sweeping immigration law passed in 1986, Congress removed almost all the states’ rights to enforce immigration, making it a federal responsibility. Lawmakers left one “out” clause, however, pertaining to “all licenses necessary to operate the business.” That licensing clause could be the downfall of those who want immigration enforcement to be a federal responsibility.
“The federal government hasn’t gone after that many convictions. That’s the whole problem,” said Associate Justice Antonin Scalia, echoing complaints of many Republicans in Congress who want more employers to be sanctioned for hiring undocumented workers. “They did allow [states] to enforce immigration law through licensing. … That’s the only option the federal government left us,” Scalia said.
Chief Justice John Roberts said the U.S. Chamber’s lawyer, Carter Philips, was “blinking over” the licensing clause in arguing that the Arizona law went far beyond congressional intent. Associate Justice Samuel Alito pointed out that states’ licensing authority actually is quite broad. “States and municipalities issue all sorts of licenses,” he said.
Associate Justice Stephen Breyer offered a passionate case for why Arizona’s law is untenable, noting that state employers have a far greater incentive to discriminate against job candidates who might be illegal than to employ someone who speaks Spanish or looks Mexican. The federal law, by contrast, balances those two concerns by imposing equal penalties on hiring an illegal immigrant and discriminating against someone who, by their heritage or appearance, might be illegal. “Your business is out to lunch, gone” if you employ an undocumented worker in Arizona, Breyer said. “On the other side, not.”
The Chamber might lose the case, but businesses can take heart that neither the justices nor Arizona Solicitor General Mary O’Grady could wrap their brains around exactly how Arizona’s law and federal law work together without conflict.
One problem arises in that the Arizona law says employers must use the federal government’s E-Verify database, which checks job candidates against Social Security Administration and Department of Homeland Security records. But Congress has repeatedly said E-Verify use is voluntary for private-sector employers. The database isn’t perfect, and the business community has long worried about overloading the system if all employers were to use it.
Another problem lies in the federal method for checking immigration status, the I-9 form, which state enforcement officers are explicitly prohibited from using. Under federal law, employers who check a worker’s status using the I-9 have fulfilled their immigration duties. Under Arizona’s law, it’s not clear whether they’re home free.
During the oral argument, O’Grady repeatedly said the state and federal laws have the same standards, but she conceded that there could be problems for the state if employers aren’t allowed to rely on the I-9 form. O’Grady suggested that the practical impact of those questions would be better determined when looking at the facts of an actual case.
If the court doesn’t strike down Arizona law, Scalia asked, what can the justices look forward to in future cases? “You’re really wasting our time,” he joked.
Wasted or not, this definitely won’t be the last word.
This article appears in the December 8, 2010, edition of National Journal Daily PM Update.