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Supreme Court Upholds Arizona Law Punishing Employers of Illegal Workers

May 26, 2011 at 12:00 AM EDT
In a split decision Thursday, the Supreme Court ruled federal law does not preempt an Arizona measure that punishes employers who knowingly hire illegal immigrants. Jeffrey Brown discusses the measure, which could strip businesses of licenses if they're caught hiring illegal workers, with The National Law Journal's Marcia Coyle.

JEFFREY BROWN: The U.S. Supreme Court today ruled federal law doesn’t preempt an Arizona measure that punishes employers who hire illegal immigrants. The split decision was a blow to immigrant advocates, business and civil liberties groups, and the Obama administration.

Under the Arizona law, companies caught hiring illegal workers can be stripped of their business licenses. And employers are required to use the otherwise-optional federal verification program known as E-Verify.

Today’s case is separate from another controversial Arizona immigration law now making its way through the court system.

As always, Marcia Coyle of The National Law Journal walks us through it.

Welcome back.

MARCIA COYLE, The National Law Journal: Thanks, Jeff.

JEFFREY BROWN: First, remind us of the background on this case and the Arizona law.


There is a federal immigration law that preempts or blocks state and local laws that impose civil or criminal sanctions on employers who hire unauthorized aliens, other than through their licensing or similar laws. And keep that phrase in mind, the exception, other than licensing laws.


MARCIA COYLE: Arizona is one of about eight states that has enacted that type of a licensing law.

Arizona’s law says, essentially, employer, if you hire an unauthorized alien, you may have your license to do business in our state suspended or even revoked.

A second part of this is the federal government has created a program that helps employers determine the status of a worker, E-Verify, an online program. It’s a voluntary program. The difference with Arizona, however, is, Arizona mandates that its employers use E-Verify.

In 2007, the Chamber of Commerce and a number of civil liberties groups challenged the Arizona law. It said that the Arizona provisions conflict with federal immigration law; federal immigration law preempts the state law. Lower federal courts didn’t agree. They upheld the state law. The Supreme Court today upheld it as well.

JEFFREY BROWN: All right, so you have a battle of federal and state law, immigration policy, one very much in the air these days.

MARCIA COYLE: Absolutely.

JEFFREY BROWN: In this case, the majority opinion written by Justice Roberts, Chief Justice Roberts, and he said Arizona was in the bounds, right…


JEFFREY BROWN: … of what federal law allows?

MARCIA COYLE: Yes, he did.

He said that the federal immigration law expressly reserves to the states the authority to impose these sanctions through licensing laws. And he said Arizona chose the path that was least likely to create tension with federal law. It did that, one, by using the federal government’s own definition of unauthorized alien, by relying solely on the federal government’s determination of who is an unauthorized alien, and by requiring employers to use the federal government’s own program to verify the status of workers.

JEFFREY BROWN: And the dissent here was that this was, in fact, encroaching on federal law?

MARCIA COYLE: Yes, it was that, and as well as other concerns.

Justice Breyer wrote a dissent, and Justice Sotomayor wrote a dissent. Justice Breyer questioned whether this was a true licensing law. Yes, it talked about revoking and suspending, but it didn’t talk about issuing.

And he also was concerned. He said it upset the balance the Congress struck in federal immigration law between deterring employers from hiring unauthorized aliens and guarding against discrimination by employers on the basis of ethnicity or race if they wanted to err on the side of not violating federal immigration law.

JEFFREY BROWN: Now, we should say it was 5-3 because Justice Kagan recused herself.

MARCIA COYLE: She did. She had participated in this case in her prior position as solicitor general of the United States.

JEFFREY BROWN: All right, so, in terms of implications here, you mentioned that there are some other states who have gone this route that Arizona has gone. So, there’s some implications there for those states.

MARCIA COYLE: Sure. They can feel somewhat confident now that their laws will be all right.

It also will encourage other states to experiment with licensing laws. Businesses have the concern that they are now going to face a patchwork of maybe 50 different licensing laws. And what will they do if they run afoul of them?

And civil rights organizations fear that it will exacerbate the problem of discrimination against workers on the basis of ethnicity, as employers try not to run afoul of these licensing laws.

JEFFREY BROWN: Then, of course, the other big question is that other law and case hanging out there that I referred to, right, the much broader Arizona law.


JEFFREY BROWN: So, what are the potential implications here?

MARCIA COYLE: Well, I’m not sure there are a lot of implications. That law…

JEFFREY BROWN: Well, let’s explain this. What is similar about it?

MARCIA COYLE: OK. All right.

JEFFREY BROWN: It is the same federal and state fight, right?

MARCIA COYLE: It is. It is.

SB-1070, the Arizona law, is being challenged by the Obama administration on preemption grounds, that it does encroach on the responsibility of the federal government to enforce immigration laws.

But it is a very different type of law. It’s not a licensing law. And it raises questions, constitutional issues involving privacy, Fourth Amendment. It empowers or authorizes law enforcement officials to stop anyone they suspect of being an illegal immigrant and checking their status.

And it does other things. It was blocked by the lower courts. And Governor Brewer just announced that she is going to go directly to the Supreme Court to challenge that.

JEFFREY BROWN: And the opposition is going to be that that one goes a lot further than the narrow area of today’s ruling.

MARCIA COYLE: Absolutely. And there are a number of states that have also enacted laws that are very similar to that particular Arizona law.

And it’s not the only — I mean, there’s a — there’s a lot of experimentation going on right now around the country in the immigration — trying to use state laws to enforce immigration.

JEFFREY BROWN: Well, it’s all from — stemming from this stated frustration they say they feel…

MARCIA COYLE: That’s true.

JEFFREY BROWN: … because of the lack of legislation at the federal level, right?


There is a case pending right now in the Supreme Court that is somewhat different. It is a challenge to a California law that allows unauthorized aliens to attend colleges in California if they meet certain — certain conditions, and then they only have to pay in-state tuition.

And that is being challenged. And the Supreme Court is taking a look at whether it wants to hear arguments in that case.

JEFFREY BROWN: And, thus, everybody reading tea leaves into today’s decision.


JEFFREY BROWN: All right, Marcia Coyle, thanks, as always.

MARCIA COYLE: My pleasure, Jeff.