Supreme Court Upholds Arizona Law Penalizing Businesses For Hiring Illegal Immigrants
PHOENIX — The Supreme Court on Thursday upheld an Arizona law that penalizes businesses for hiring workers in the country illegally, buoying the hopes of supporters of state crackdowns on illegal immigration.
They predicted the ruling would lead to many other states passing laws that require employers to use the federal E-Verify system to check that workers aren't illegal immigrants. And some said the ruling bodes well for the prospects of a much broader and more controversial immigration law in Arizona, known as SB1070, to be found constitutional.
The state is appealing a ruling blocking portions of that law from taking effect.
But some legal experts said the ruling should not be read as a broad validation of such tactics. While they acknowledge that other states will now pass similar employer sanctions, they cautioned that the court did not make any sweeping endorsement of states' rights to enforce federal immigration laws.
"It's a very careful and narrowly reasoned opinion, so it doesn't really tip the court's hand one way or the other with respect to SB1070," said Peter Spiro, a Temple University law professor who specializes in immigration law. "That being said, the court here is validating a state measure that implicates immigration enforcement. The court today has rejected an argument that the states have no business in immigration enforcement. That's off the table."
Arizona Senate President Russell Pearce, a Republican who was a prime sponsor of the legislation that became the 2007 employer sanctions law, said his reaction to the ruling was "jubilation."
"This is not only good for Arizona, it's good for America," Pearce told The Associated Press. "Finally, American workers are treated the way they ought to be. We're going to put the profits-before-patriotism crowd in the back seat."
Pearce said the ruling bodes well for an eventual Supreme Court decision on SB1070.
"I'm very confident we'll win a 5-4 or possibly a 6-3 decision," he said. "States have never been pre-empted from enforcing federal law."
Both laws were written with the assistance of Kris Kobach, Kansas' secretary of state and a former law professor. He said they were constructed to only use federal immigration law definitions, and the ruling upholding the first could mean success for the second.
"That language will vastly assist the state in defending SB1070,' Kobach said.
Others aren't so sure. Arizona State University constitutional law professor Paul Bender said Chief Justice John Roberts went out of his way to say the employer sanctions law was being enforced in conjunction with the federal government because its provisions mimic federal law.
That's not the case with SB1070, Bender said. With that Arizona law, police decide who to detain, and illegal immigrants can be prosecuted in state court.
"If they really mean that this is OK but only because there are safeguards here to make sure the states don't go crazy and start doing things contrary to federal policy, that would bode ill for 1070," Bender said. "Because 1070 does not have these safeguards and there's a real danger."
Dozens of other states have taken up immigration-related measures since Arizona passed its first law. Most have gone nowhere, but several have passed laws similar to the one found constitutional on Thursday.
"So far Mississippi and South Carolina have followed Arizona in requiring E-Verify,' Kobach said. "Alabama is about to ... and I think you'll see many other states jumping on the bandwagon and requiring E-Verify."
Thursday's 5-3 ruling placed the court's five Republican-appointed justices on the side of the state and against the Chamber of Commerce, which challenged the law along with the American Civil Liberties Union.
Roberts, writing for the majority, said Arizona's employer sanctions law "falls well within the confines of the authority Congress chose to leave to the states."
Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, all Democratic appointees, dissented. The fourth Democratic appointee, Justice Elena Kagan, did not participate in the case because she worked on it while serving as President Barack Obama's solicitor general.
Breyer said the Arizona law upsets a balance in federal law between dissuading employers from hiring illegal workers and ensuring that people are not discriminated against because they may speak with an accent or look like they might be immigrants.
Employers "will hesitate to hire those they fear will turn out to lack the right to work in the United States," he said.
The Obama administration backed the challenge to the law. The measure was signed into law in 2007 by Democrat Janet Napolitano, then the governor of Arizona and now Obama's Homeland Security secretary.
The employer sanctions law has been infrequently used. It was intended to diminish Arizona's role as the nation's hub for immigrant smuggling by requiring employers to verify the eligibility of new workers through a federal database. Employers found to have violated the law can have their business licenses suspended or revoked.
Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, praised the high court's decision. "Not only is this law constitutional, it is commonsense. American jobs should be preserved for Americans and legal workers," Smith said.
Lower courts, including the San Francisco-based 9th U.S. Circuit Court of Appeals, previously upheld the law.
The ACLU's Cecillia Wang said the Supreme Court decision was disappointing, but narrow. "The decision has nothing to do with SB1070 or any other state and local immigration laws," said Wang, director of ACLU's immigrant rights project.
Arizona Gov. Jan Brewer called the decision gratifying and said it upheld states' rights.
"Despite the Obama Administration's opposition at the U.S. Supreme Court, Arizona and all states are now free to take down the `Help Wanted' sign for illegal aliens in their states," she said in a statement. "Arizona's employer sanctions law allows the vast majority of businesses that want to play by the rules to comply with federal and state laws against hiring illegal aliens, and seeks to punish those employers who take advantage of the federal government's immigration failures."
Last month, a three-judge panel of that same appeals court upheld a trial judge's ruling blocking enforcement of parts of SB1070. The provisions that were blocked include a requirement that police, while enforcing other laws, must question a person's immigration status if officers have reasonable suspicion the person was in the country illegally.
Other provisions that are on hold include: requiring all immigrants to obtain or carry immigration registration papers; making it a state criminal offense for an illegal immigrant to seek work or hold a job; and allowing police to arrest suspected illegal immigrants without a warrant.
Brewer said she is hopeful the latest ruling means the high court will also uphold SB1070.
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Sherman reported from Washington. Associated Press writer Paul Davenport in Phoenix contributed.
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The case is Chamber of Commerce v. Whiting, 09-115.
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BOB CHRISTIE and MARK SHERMAN 05/26/11 09:07 PM ET Associated Press