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Supreme Court Reviews Controversial Arizona Law on Illegal Workers

December 8, 2010 at 12:00 AM EDT
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The Supreme Court weighed the constitutionality of a controversial Arizona immigration law that penalizes employers who hire illegal workers. Marcia Coyle of the National Law Journal walks through Wednesday's arguments and the legal issues at play.
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GWEN IFILL: We have two stories about immigration policy tonight. The first played out at the U.S. Supreme Court today, where justices weighed the constitutionality of an Arizona immigration law.

Today’s arguments arise from a 2007 Arizona law that punishes employers who knowingly hire workers in the country illegally. The Legal Arizona Workers Act requires employers to use a federal database to verify the eligibility of new workers. Violators can have their business licenses suspended or revoked.

Supporters of the law say the federal government hasn’t done enough to prevent the hiring of illegal immigrants.

Arizona Governor Jan Brewer:

GOV. JAN BREWER (R-Ariz.): Well, the bottom line is, is that we believe that, if the government isn’t going to do the job, that Arizona is going to do the job. And we are faced with a crisis.

And, in regards to today’s hearing, certainly, we do issue licenses. We do, do that. And, if we giveth, we can taketh away.

GWEN IFILL: Backed by the Obama administration, businesses and civil rights groups have insisted that only the federal government, not states, can enforce immigration laws.

CARTER PHILLIPS, attorney, U.S. Chamber of Commerce: Let the federal government do its thing, make the final determination. And if, at the end of that, you would, in the ordinary course, add a sanction to it, then Arizona is free to do that. But what it’s not free to do is create an entire parallel mechanism to enforce what it purports to claim is state law in the guise of enforcing federal law.

GWEN IFILL: The employer database used to check out potential employees, called E-Verify, was the subject of this public service announcement from U.S. Immigration and Customs Enforcement.

JOHN MORTON, director, U.S. Immigration and Customs Enforcement: Why do people come to the United States illegally? They come here to work. The public can and should choose to reward companies who follow the law and employ a legal work force.

GWEN IFILL: Dan Stein, president of the Federation for American Immigration Reform, says he thinks the program is working.

DAN STEIN, president, Federation for American Immigration Reform: We know that the E-Verify program is effective because employers get a yea or nay, and then the alien has a certain number of days to either get the information, or he’s not going to be hired. So, clearly, it works.

E-Verify would work a lot better if the Obama administration would actually apprehend illegal aliens found on work sites. And they’re not doing that.

GWEN IFILL: But National Immigration Forum’s Grisella Martinez, who opposes the Arizona law, believes E-Verify will not fix immigration issues.

GRISELLA MARTINEZ, Director of Policy and Legislative Affairs, National Immigration Forum: When it comes to E-Verify, you know, no technology on its own is going to solve the problems of illegal immigration. And E-Verify is always put out there as the magic bullet that’s going to do that for us. But no technology erases the laws of supply and demand.

GWEN IFILL: A survey by the Associated Press of county prosecutors’ offices in Arizona found that the law has had limited effect. Of 101 employer sanctions complaints, only three civil cases have been filed.

But dozens of business raids have led to the arrests of 131 illegal immigrant workers on criminal charges, like using forged documents or stolen identities to get work.

Today’s case is just a fraction of the heated debate over immigration policy taking place in Arizona. Outspoken supporters and opponents of another controversial and even more expansive immigration law protested across the country after it was enacted earlier this year.

That law is now under circuit court review and could also be on its way to the Supreme Court.

Marcia Coyle of “The National Law Journal” was at the court today and is here tonight to walk us through today’s arguments.

This is one of these strange-bedfellows cases, where we had the America Civil Liberties Union on one side and the Chamber of Commerce on the same side for a change.

MARCIA COYLE, “The National Law Journal”: That’s true, Gwen.

You had the Chamber concerned about the impact of the state law on businesses. It has some very tough penalties. And you have civil liberties groups and labor unions concerned about whether, in overenforcing the law, there might be discrimination against legal workers who just look foreign.

GWEN IFILL: Was this really an argument about immigration, or was it an argument about what a state is allowed to do when a federal law exists?

MARCIA COYLE: Well, it boils down to the latter.

Under our constitutional system, federal law is supreme. And this case is really about whether a 1986 federal immigration law allows Arizona to do what it wants to do here.

GWEN IFILL: So, in the courtroom today, how did the arguments break down?

MARCIA COYLE: Well, since the Chamber of Commerce and the ACLU lost below and brought the appeal to the Supreme Court, their lawyer, Carter Phillips of the Sidley Austin law firm, went first.

And he told the justices that Congress in 1986 enacted an exclusive and an exhaustive enforcement scheme for determining whether a worker is authorized or not. The 1986 law, he said, expressly states that it preempts, supersedes state or local laws that impose sanctions, other than through licensing or similar laws, on employers who hire illegal aliens.

GWEN IFILL: You mentioned licensing — licensing. In some ways, I suppose, the state is trying to argue that this is a case about licensing businesses. They have the power to do that, not necessarily the power to punish. Is that another key distinction here?

MARCIA COYLE: It absolutely is.

In fact, the attorneys for the Chamber, not only Mr. Phillips, but for the United States, Solicitor General Neal Katyal, they ran into skeptical questioning from the chief justice, Chief Justice Roberts, and Justice Kennedy, who said that perhaps Arizona’s law does fit within that exception in the federal law for licensing laws.

But Mr. Phillips and Mr. Katyal said, this is not a licensing law. Traditionally, that’s a law that says you’re fit to do business. On its face, they said this law is a punishment law.

GWEN IFILL: Because it’s saying, you’re fit — you’re not fit to do business, the other way around.

MARCIA COYLE: And here are some heavy sanctions that we’re going to impose if you hire an unauthorized worker.

GWEN IFILL: Did other members of the court, other justices weigh in?

MARCIA COYLE: Yes. When Arizona’s attorney stepped forward — that was Arizona Solicitor General Mary O’Grady — she said, this is a licensing law. It’s a fit-to-do-business law. We’re saying, in Arizona, if you hire an unauthorized worker, we’re going to take an action related to your fitness to do business. We will impose a range of sanctions, depending on the severity and the repetition of the violation.

Well, she ran into some questions, skeptical questioning, from Justice Ginsburg, who noted, OK, well, Arizona mandates that employers use E-Verify. That’s a federal program that’s voluntary. How can Arizona take a voluntary program and make it mandatory?

And, also…

GWEN IFILL: Ah. And that’s the state overstepping once again in their argument?

MARCIA COYLE: Exactly. It’s a potential inconsistency with the federal law, which could ultimately result in the federal law preempting the state law.

GWEN IFILL: Has the federal law been enforced?

MARCIA COYLE: Yes, it has, but that — that’s also a sore point of contention here.

Justice Scalia made it very clear in the arguments today that he sympathized with Arizona’s immigration problem. He said, Arizona had to take this massive step. And he said it is massive step, but had to take it because basically the federal government isn’t doing its job.

GWEN IFILL: Justice Elena Kagan, the newest member of the court, recused herself from these arguments and from this case. We presume it’s because she had something to do with it when she was solicitor general.

But what impact does that have?

MARCIA COYLE: Judging on what was said in the arguments today, it seemed as though there is a real potential that the court could split 4-4, since there are only eight justices now. And it’s — they seem divided.

If they do split 4-4, Arizona wins, because it did win in the lower court, and the lower court’s decision will be left in place.

GWEN IFILL: And if Arizona doesn’t win — or if it does win, does this have broader impact for other states who are poised to do their own immigration enforcement as well?

MARCIA COYLE: Well, other states and localities already have taken steps in the last couple of years.

And, yes, it does have impact. As the United States attorney, Mr. Katyal, pointed out, 40,000 municipalities can do what Arizona did if this law is upheld.

It also may have some real impact, for example, on the law that you mentioned in the pre-tape here, Arizona’s SB-1070, which is being…

GWEN IFILL: Right.

MARCIA COYLE: Other states are modeling and other local governments are modeling laws after that.

GWEN IFILL: Remind people what that does.

MARCIA COYLE: SB-1070 authorizes, requires local law enforcement to stop and detain people that they suspect might be in the country illegally.

GWEN IFILL: Right.

MARCIA COYLE: What the Supreme Court says in the employment case today about what a state can do in the area of illegal immigration, which is primarily a federal responsibility, will have an impact on what states and local governments can do, and may give us a signal as to how the Supreme Court will look at that other Arizona law, which inevitably is coming our way.

GWEN IFILL: An impact, chilling or otherwise. Marcia Coyle, thanks again.

MARCIA COYLE: My pleasure, Gwen.