Supreme Court may head for split ruling on immigration law

McClatchy NewspapersDecember 8, 2010 

WASHINGTON — The Supreme Court seemed split but leaning in favor Wednesday of an Arizona law that severely penalizes employers that hire illegal immigrants.

In a timely case, 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 hour-long oral argument.

Several 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 preempted 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.

The 1986 federal law made it illegal to hire illegal immigrants. The so-called employer sanctions law also explicitly preempted 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 added.

Arizona Republican Gov. Jan Brewer was in the chamber to observe the argument.

A separate law that Brewer signed earlier this year requires police to check an individual's immigration status when there is a "reasonable suspicion" that the person is an illegal alien. This requirement applies when police have stopped or arrested the person for another, legitimate reason.

The Ninth Circuit Court of Appeals heard a challenge last month to the other Arizona law, which could likewise end up at the Supreme Court.

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