Supreme Court appears divided over state laws against illega
Supreme Court appears divided over state laws against illegal immigration
If Justice Anthony M. Kennedy sides with the court's liberal bloc on Arizona's 'business death penalty' for companies that knowingly hire illegal immigrants more than once, it could signal trouble for other state and local immigration laws.
By David G. Savage, Tribune Washington Bureau
December 9, 2010
Reporting from Washington —
The Supreme Court's showdown over whether states can aggressively enforce laws against illegal immigrants may have ended in a draw Wednesday.
If so, Arizona's 3-year-old law that cracks down on employers who knowingly hire illegal workers will stand. It could serve as a model for other states and cities that seek to adopt stricter enforcement measures.
But if Justice Anthony M. Kennedy joins with his more liberal colleagues, as he did for part of Wednesday's argument, it could signal trouble in the future for other laws targeting illegal immigrants. They include Arizona's law that requires police to check the immigration status of suspicious people who are lawfully stopped, which could reach the court during its next term.
At issue Wednesday was the fate of the Legal Arizona Workers Act, which imposes the so-called business death penalty on employers who are caught twice knowingly hiring illegal workers.
Lower courts upheld the law, but the Obama administration and the U.S. Chamber of Commerce joined in arguing that the state law should be voided because it conflicts with the federal government's authority over immigration.
But those challenging the law were at a disadvantage Wednesday because new Justice Elena Kagan, who came from the Obama administration, announced she would not participate in the decision. That set the stage for a possible 4-4 split, which would uphold Arizona's law but set no legal precedent.
The stakes were high, as it has been more than 30 years since the Supreme Court ruled on a clash between a state and the federal government over immigration. Such clashes have become common in recent years as states and cities consider new enforcement measures to target illegal immigrants.
Kennedy, who often casts the deciding vote in close cases, did not say definitively how he would decide. But near the end of the argument, he said he agreed with criticisms voiced by the three liberal justices. Arizona's strict requirements on employers seem to be "an almost classic example of a state doing something that is inconsistent with a federal requirement," he said.
If Kennedy follows that view, he could cast a fourth vote to strike down Arizona law — one short of a majority, but potentially a fifth vote with Kagan the next time.
Justice Antonin Scalia took Arizona's side throughout the argument. He said the state was forced to adopt strict measures of its own because of the lack of federal enforcement.
"That's the only option" the state had, he said. Arizona faced "serious trouble financially because of unrestrained immigration.... The federal government has simply not enforced the immigration restrictions" in federal law, he said.
Scalia's fellow conservatives sounded as though they would join him in support of Arizona's law.
In challenging Arizona, Acting Solicitor Gen. Neal Katyal said Congress passed a "comprehensive" immigration law in 1986 that did not allow states to go their own way. It "broadly swept away state and local laws" that punished employers for hiring illegal workers, he said. He pointed to a disputed provision that says states and localities may not impose criminal or civil sanctions on employers for immigration violations, other than through licensing laws.
If Arizona can adopt its own sanctions for employers for hiring illegal workers, Katyal said, then "40,000 localities can do it.... It would permit all the states to have their own laws."
The liberal justices agreed Arizona was imposing extra sanctions on employers.
But Arizona's solicitor general, Mary O'Grady, emphasized that the 1986 law allowed states to enforce licensing laws, and that Arizona enforces its law by taking away a business license.
The conservative justices picked up her argument and said the state was free to do that under the federal law.
david.savage@latimes.com
http://www.latimes.com/news/nationworld ... 8096.story
Supreme Court hears arguments on immigrant hiring law
12.08.10
Supreme Court hears arguments on immigrant hiring law
By MICHAEL DOYLE
McClatchy Newspapers
WASHINGTON -- The Supreme Court Wednesday seemed split but leaning in favor of an Arizona law that severely penalizes employers that hire illegal immigrants.
Some justices voiced concern that Arizona was infringing on federal power while others said the state was compelled to act by the enormity of the illegal immigration problem.
"Arizona and other states are in serious trouble financially and for other reasons because of unrestrained illegal immigration," said Justice Antonin Scalia.
Scalia, Chief Justice John Roberts Jr. and Justice Samuel Alito appeared most sympathetic to Arizona's law regulating employers and illegal immigrants. Their fellow conservative, Justice Clarence Thomas, followed his custom in not speaking during the hourlong oral argument.
Some Democratic-appointed justices, though, suggested the three-year-old Arizona law intruded on federal turf or could lead to anti-Hispanic discrimination. The skeptics focused on whether a 1986 federal immigration law pre-empted individual state action.
"The enforcement of the immigration laws should be uniform; Congress stated that as an overarching principle," said attorney Carter G. Phillips, arguing on behalf of the U.S. Chamber of Commerce.
The chamber joined the American Civil Liberties Union and immigrants rights groups in challenging the Legal Arizona Workers Act of 2007. By happenstance, the oral argument Wednesday occurred shortly before members of Congress were to vote on unrelated immigrant legalization plans.
Justice Elena Kagan recused herself, and her absence increases the chances the law will be upheld. Kagan was President Barack Obama's solicitor general, and her successor has sided with opponents of the Arizona law. In the event of a 4-to-4 tie among the eight other justices, the lower court's decision will be upheld and the law will remain on the books.
The Arizona law considered by the Supreme Court deals only with enforcement.
The state law contains two main parts. The Supreme Court could end up keeping one and getting rid of the other.
The law, in part, requires Arizona employers to determine worker eligibility through an Internet-based system called E-Verify.
Through E-Verify, employers can quickly match a job applicant's information with Social Security and Department of Homeland Security databases. About 103,000 employers nationwide were registered to use the program last year.
Congress created E-Verify as a voluntary program, under a different name, in 1996, and it remains largely voluntary save for federal contractors.
"This is a federal resource, and the federal government has said, 'We want this to be voluntary,' " Justice Ruth Bader Ginsburg noted. "How can Arizona set the rules on a federal resource?"
Justice Anthony Kennedy added that the Arizona's mandate to use E-Verify "seems almost a classic example of a state doing something that is inconsistent with a federal requirement."
In addition to the E-Verify requirement, the Arizona law imposes strict penalties on employers that "knowingly or intentionally" hire an illegal immigrant. Guilty employers can have their business licenses suspended or permanently revoked.
Three employers have faced suspension or termination of their business license, under the law
"You can effectively have the death penalty for business," Phillips argued.
Much of the debate, and the court's ultimate decision, will come down to an interpretation of what Congress meant in the 1986 Immigration Reform and Control Act.
That law made it illegal to hire illegal immigrants. The so-called employer sanctions law also explicitly pre-empted any state or local employer sanction laws "other than through licensing or similar laws."
Roberts showed sympathy for Arizona's argument by stressing that this clause "is not a real reservation" by Congress of this power.
"They took away our authority to impose civil monetary and criminal sanctions, but preserved our authority to impose (licensing) sanctions under this law," Arizona Solicitor General Mary O'Grady said.
Arizona Republican Gov. Jan Brewer was in the chamber to observe the argument.
A separate law that Brewer signed earlier this year, SB1070, requires police to check an individual's immigration status when there is a "reasonable suspicion" that the person is an illegal immigrant. This requirement applies when police have stopped or arrested the person for another, legitimate reason.
The 9th Circuit Court of Appeals heard a challenge last month to SB1070, which could likewise end up at the Supreme Court.
http://www.miamiherald.com/2010/12/08/1 ... z17Ze9jP7c
