Illegal workers' case weighed

By Joan Biskupic, USA TODAY

WASHINGTON — The Supreme Court appeared poised Wednesday to uphold an Arizona law that penalizes companies that hire illegal immigrants. Business and civil rights groups have challenged the law as conflicting with U.S. immigration policy.

Chief Justice John Roberts was among those justices who suggested during an hour-long hearing that Arizona's penalties, which culminate in revocation of a business license, meet a "licensing" exemption in U.S. immigration law.

The case arises against a backdrop of national debate over illegal immigration. Justice Antonin Scalia invoked that context, asserting, "What Arizona says ... is that the (federal immigration) scheme has not been enforced" and states "had to take this very massive step (because) the federal government has simply not enforced the immigration restrictions."
A few justices — but not a clear five needed for a majority — voiced some sympathy for arguments from Washington lawyer Carter Phillips, representing the Chamber of Commerce, the American Civil Liberties Union and other challengers to the law, that Congress wanted a uniform national scheme and sought to override state sanctions on employers who knowingly hire illegal workers.

Justice Stephen Breyer noted that the Arizona license penalty is far more severe than any of the fines in federal law for hiring an illegal worker.
The U.S. Court of Appeals for the 9th Circuit upheld the law. Winning five votes to reverse it is more difficult than usual here because only eight justices are deciding the case. New Justice Elena Kagan is off the case because she was involved, as the U.S. solicitor general, in the U.S. position siding with challengers.

If the court ends up splitting 4-4, the decision upholding the Arizona law would stand, but no national rule would be set for other states seeking to punish employers who hire people who have crossed the border illegally.
The question for the justices is whether the 2007 Arizona employer penalties are overridden by U.S. immigration law that "pre-empt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ" illegal immigrants.
Phillips insisted Arizona's statute could not be viewed as a mere "licensing" law and argued that Congress sought to control regulation against illegal immigration. He said Congress feared that if there were heavy state penalties on employers, they would "err on the side of not hiring" foreigners who were in fact authorized to work here.
Chief Justice Roberts particularly scrutinized Phillips' contention that Congress considered all employer regulations in the federal domain. "You are just kind of blinking over" the licensing exemption, Roberts said.
Arizona state Solicitor General Mary O'Grady told the justices that, "Although Congress pre-empted some of our traditional authority when it enacted (an immigration overhaul) in 1986, it preserved significant state authority ... that permits a state to impose sanctions through licensing."

Arizona requires employers to use an otherwise optional federal verification program, known as the E-Verify system, which collects data on workers from the Social Security Administration and Department of Homeland Security.

Justice Anthony Kennedy, often a key vote on the court, questioned how the state could force employers to use the verification program. "It seems to me that's almost a classic example of a state doing something that is inconsistent with a federal requirement," he said.

http://www.usatoday.com/news/washington ... kers_N.htm