U.S. Immigration and Customs Enforcement agents detain suspected illegal immigrants in Phoenix. A Supreme Court ruling will allow the state to revoke business licenses for those who hire undocumented workers. (Nick Oza / Associated Press / May 26, 2011)
By David G. Savage, Washington Bureau
May 26, 2011, 5:59 p.m.
Reporting from Washington— The Supreme Court gave a big boost to proponents of stricter state laws against illegal immigration by upholding Arizona’s “business death penalty” for employers who repeatedly hire undocumented workers.
The 5-3 ruling gives more states a green light to target those who employ illegal immigrants. And because it rejected the contention that the state was interfering with the federal government’s authority over immigration, the decision also encouraged supporters of Arizona’s even more controversial immigration law. That law, which requires police to check the immigration status of people they lawfully stop and who they suspect are in the country illegally, will soon come before the court.
The ruling said Arizona could deny employers a business license after a second violation of its Legal Arizona Workers Act of 2007. Also upheld was Arizona’s requirement that employers check with the federal E-Verify program before hiring workers.
Chief Justice John G. Roberts Jr. said Arizona’s licensing law “falls well within the confines of the authority Congress chose to leave to the states,” rebuffing challenges from the U.S. Chamber of Commerce, the Obama administration and civil rights groups.
The ruling on the employment question sets the stage for a high court showdown as early as next year in the even bigger battle over Arizona’s mandate for police detention of people they suspect are in the U.S. illegally, known as SB 1070.
Last summer, the Obama administration sued Arizona to block that law. A federal judge and the U.S. 9th Circuit Court of Appeals agreed with the administration that it interfered with federal enforcement prerogatives and put the law on hold.
Opponents and proponents of that law had dueling interpretations of the significance of Thursday’s ruling.
Arizona Gov. Jan Brewer said she was “hopeful and optimistic” the high court would hear the state’s appeal later this year and revive SB 1070.
The law won Arizona nationwide fame as well as infamy. Brewer’s popularity skyrocketed, and polls showed SB 1070 widely popular statewide. But the law also prompted noisy protests, a recall drive against the bill’s author and boycotts that, by some estimates, cost the state millions of dollars.
Peter Spiro, a Temple University law professor, said the outcome did not guarantee Arizona’s police measure would be upheld. “SB 1070 pushes the envelope. It’s a different case,” he said. “But this is definitely a victory for those who are pushing restrictive immigration measures in state houses.”
Immigrant rights lawyers called the court’s decision disappointing but narrow.
“State legislators considering this decision a free pass to enact legislation targeting immigrants are gravely mistaken,” said Linton Joaquin, general counsel for the National Immigration Law Center.
In his majority opinion, Roberts noted that eight other states had passed laws similar to Arizona’s that punish employers for hiring illegal workers. They are Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia.
The ruling may revive a local ordinance in Hazleton, Pa., that would take away business licenses from landlords who rented to illegal immigrants. The measure was struck down by a federal appeals court in Philadelphia, but an appeal is pending in the Supreme Court.
The heart of Thursday’s decision centered on a few words in a 1986 federal immigration law. It said states and localities could not impose “criminal or civil sanctions (other than through licensing and similar laws) upon those who employ … authorized aliens.”
Shortly after then-Arizona Gov. Janet Napolitano signed in 2007 what she called the “business death penalty” for employers who hired illegal workers, civil rights groups and the U.S. Chamber of Commerce sued. They argued its provisions were sanctions and, therefore, were barred by federal law. But they lost before a federal district court and the U.S. 9th Circuit Court of Appeals.
The Supreme Court affirmed those decisions Thursday in Chamber of Commerce vs. Whiting.
Roberts said there was a “high threshold” for striking down a state law on the grounds that it conflicted with a federal law, a passage welcomed by Arizona’s top officials. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined to form the majority.
In dissent were Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. They said the majority’s interpretation overrides the 1986 provision barring sanctions against employers. It could also permit “discrimination [against] legal workers who look or sound foreign,” Breyer said. Justice Elena Kagan recused herself from the case.
Robin Conrad, executive vice president of the National Chamber Litigation Center, the legal arm of the U.S. Chamber of Commerce, said the decision would lead to a “growing patchwork” of immigration laws across the country, creating obstacles for those conducting business across state lines.
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