Supreme Court Weighs Case That’s Likely Precursor to SB 1070

How justices rule on another Arizona law may signal fate for all state-level immigration enforcement challenges.

By Seth Freed Wessler Dec 10, 2010

The Supreme Court heard arguments on Wednesday in a case that could have significant implications for the rights of state and local governments to impose their own immigration laws such as notorious Arizona’s SB 1080. The case considers the legality of another Arizona law, which enacts strict sanctions on employers that hire undocumented immigrants. It’s just one of a series of crucial immigration cases that are winding their way through the courts now.

On Wednesday, an unlikely cohort of litigants including the American Civil Liberties Union, the Obama administration and the United States Chamber of Commerce made oral arguments in Chamber of Commerce v. Whiting. The case considers the Legal Arizona Workers Act, a 2007 Arizona law that requires employers to check the immigration status of new hires through a federal employer database called E-Verify. Employers who fail to do so or knowingly hire undocumented immigrants are slapped with sanctions, including possible revocation of their business licenses. 

The law was previously upheld by a circuit court. The Supreme Court is likely to allow the law to stand as well, either through a majority ruling or as a result of a tie, but how it does so will matter greatly.

The administration and others are challenging the law on several grounds. Mainly, they argue, it preempts federal law, specifically a section of the 1986 Immigration Control and Reform Act that grants the federal government full and exclusive rights to enforce immigration policy. Similarly, the challengers argue that the state oversteps its authority by requiring businesses to check E-Verify, because the the the federal government has deemed that program voluntary. These are the same arguments the Obama administration is making in its case against SB 1070.

Beyond the feds’ preemption arguments, civil rights groups say the law encourages racial discrimination. Omar C. Jadwat of the ACLU said in a statement to press, the law "creates an unacceptable risk of discrimination against lawful workers" who may not be hired because they are Latino or speak with an accent.

Arizona’s solicitor general has countered that the1986 law maintained a singular exception on the question of preemption that allows states to continue to administer business regulations through "licensing and similar laws." Arizona posits that the exception also permits the state to revoke those licenses. Arizona Gov. Jan Brewer put it this way: "Certainly we do issue licenses, we do do that, and if we giveth, we can taketh away."

Arizona also argues that the policy simply picks up the slack left by the federal government, which, the state says, has failed to enforce immigration laws. Again, that echoes the state’s defense in the suits against SB 1070.

The conservative Justice Antonin Scalia appeared to agree with the latter claims on federal inaction.

"Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration," said Scalia. "I agree this step is massive, and one wouldn’t have expected it to occur under this statute. But expectations change when the federal government has simply not enforced the immigration restrictions."

Justice Breyer, on the other hand, expressed concern over the potential for the law to facilitate racial discrimination. 

"How can you reconcile that intent to prevent discrimination against people because of their appearance or accent?" he asked. "How do you reconcile that with Arizona’s law?"

Only eight of the nine justices will rule. Justice Elena Kagan recused herself from the decision because she’d previously worked on the case when she served as solicitor general.  Four Justices are poised to vote to uphold the law, while three appear to be against. Justice Anthony Kennedy is the likely swing vote, and his responses during the case did not clearly indicate which way he’d fall.

Kennedy said there is "no limitation on what the states can decide is a license," reports the NY Times.

But, the NYT reports:

Justice Kennedy objected to a second part of the Arizona law, this one requiring employers to use an otherwise voluntary electronic federal system meant to verify employment status known as E-Verify.

"It seems to me that’s almost a classic example of a state doing something that is inconsistent with a federal requirement," he said.

If Kennedy opines in favor of the Arizona law, the court is likely to rule 5-3 to grant Arizona the right to impose employer sanctions. Such a ruling would also set a precedent for future cases that pertain to state’s ability to enforce immigration laws and would offer states and localities a green light to pass similar legislation. 

If Kennedy agrees with the challengers, the court is likely to be tied in a 4-4 ruling. That would leave the lower courts previous decision intact and, in effect, let Arizona continue doing what it already does. But a tie would not set any precedent for future cases and, in as much as Justice Kagan is expected to rule in the future with the liberal side of the bench, might send some signal as to how the court will rule on future cases, like SB 1070, involving immigration and local enforcement.