Michael Bloomberg and Rupert Murdoch are not the only businessmen lobbying for Congress to pass an immigration reform law.
A landmark case has led to an unusual alliance between businesses, chambers of commerce, civil rights groups and labor, who are all fighting the state of Arizona on a 2007 law that penalizes businesses for hiring undocumented immigrants.
On December 8 the U.S. Supreme Court heard arguments for and against the Legal Arizona Workers Act (LAWA), also known as the Employer Sanctions Immigration Law. The court will determine the constitutionality of allowing the state to 1) impose criminal sanctions against employers by revoking their business licenses, and 2) require employers to participate in the E-Verify program of the Department of Homeland Security.
E-Verify is an Internet-based system that allows an employer to determine the eligibility of an employee to work in the United States. It’s mandatory for employers with federal contracts, but voluntary for other employers. Can a state law force businesses into the program?
The plaintiffs – 11 business groups and labor organizations – say no, and are calling the law unconstitutional. They argue the authority to approve and revoke licenses from businesses that employ undocumented immigrants is vested in the federal government. Because of LAWA, they also say some businesses have resisted hiring people of color, for fear of getting on the bad side of the law.
“Immigration policy has traditionally been the subject of federal law,” wrote lawyers David Selden and Julie Pace, who are representing the plaintiffs, in a legal paper.
The lawyers argued that any state law on immigration could “interfere and conflict” with federal immigration policy. That’s the same argument lawyers are using to fight Arizona’s more famous state immigration law, SB 1070. Selden and Pace also cited the Immigration Reform and Control Act of 1986, which expressly provides that federal regulation of immigration-related hiring practices preempts any state and local laws.
The justices make their decision in this case is expected to influence the politics swirling around immigration reform.
“If the Supreme Court recognizes federal preemption, Congress will be the only body that can fix the current immigration system and pressure will mount for action. If the Court allows the states to take action, pressure on Congress may lessen in the near term, as state immigration laws become, by default, the new national immigration policy,” the lawyers argued.
As for E-verify, Selden writes that Congress expressly stated the program is voluntary. “Even Homeland Security, which runs E-Verify, does not have the authority to make it mandatory,” he said.
But Arizona’s attorney general argues that the state has been implementing the law “fairly” since it went into effect in 2008, and just wants to ensure that no business knowingly or intentionally hires unauthorized immigrants.
Three cases have been filed for violation of LAWA. Two of the cases were resolved after the businesses (Waterworld, a limited partnership in Glendale, and a”Danny’s Subway” in Phoenix) agreed to terminate the services of undocumented employees. A third case is still under litigation.
Potentially complicating a decision in the plaintiffs’ favor is the current composition of the Supreme Court. Newly appointed Justice Elena Kagan asked to be removed from the case because she had argued a similar case as solicitor general while working for the federal government. The Obama Administration opposes the Arizona law, and filed a brief to the Supreme Court concerning this case, saying it undermines federal enforcement of immigration law.
The headcount for the conservatives is likely to include Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts, who the plaintiffs fear view LAWA as a licensing law, not an immigration law.
“Anything is possible,” said Selden, “but the court will try to avoid a 4-4 decision.”
Tie votes are rare in the Supreme Court, but with these eight justices, there’s a good possibility of a deadlock. In the event of a split vote, the decision by the lower court will be upheld. In this case, the Ninth Circuit Court of Appeals upheld Arizona’s right to pass its own employer sanctions law, so the law would stand in Arizona. But no precedent will be established for states who may want to pass a similar law in the future.
In a conference call open to the media, Selden said that by revoking business licenses on the grounds of hiring paperless immigrants, the state was overreaching into a clearly defined area of federal jurisdiction.
“The state cannot come in and levy a fine against an employer, but it can take action and put companies out of business completely? It’s like saying we won’t put you in jail for 30 days but we can do it for life.”