Justices’ Arizona Ruling on Illegal Immigration May Embolden States


By JULIA PRESTON

Published: May 27, 2011

The decision by the Supreme Court this week upholding an Arizona law punishing employers for hiring illegal immigrants was an energy boost for state lawmakers across the country who have proposed bills this year to curb illegal immigration. As if they needed it.


According to the National Conference of State Legislatures, state lawmakers set a new record in the first three months of the year, proposing 1,538 bills related to immigration, with 141 measures in 26 states passed into law. While some of those laws extended new opportunities to illegal immigrants, like permitting them to pay lower in-state tuition rates at public colleges, most of the laws imposed restrictions on them.

With its decision on the hiring law that Arizona passed in 2007, the Supreme Court indicated that it would not flat out disallow any action by states on immigration enforcement, even though federal law generally pre-empts state measures in that area. State lawmakers now know for certain that there is some firm legal ground for the recent round of bills that seek to drive illegal immigrants out of the country by preventing them from taking jobs and even living here.

But it remains unclear just how large the playing field is that the Supreme Court has opened. Arizona’s employer law was carefully tailored to conform to specific, narrow terms in federal immigration law, and it was never suspended by any federal court. To date, only a handful of states have passed laws with requirements and penalties for employers similar to Arizona’s.

Instead, this year many more states weighed whether to emulate the more sweeping and politically polarizing law that Arizona passed last year, known as S.B. 1070, which expanded the powers of the state and local police to ask about the immigration status of people they detain. The Supreme Court has not yet considered that law, which has been largely suspended by federal courts.

By now, however, with the legislative season either winding down or over in most states, it seems clear that lawmakers’ decisions on whether to follow Arizona’s lead on police enforcement ultimately had more to do with state politics than with concerns about potential legal challenges and Supreme Court rulings.

Kris Kobach, the constitutional lawyer who has been the intellectual if not the actual author of many of the state immigration enforcement laws, was elated by the court’s recent decision. The ruling “has vindicated our position that states are not pre-empted by federal law from these actions,â€