Supreme Court upholds Arizona law designed to thwart illegal workers

The US Supreme Court on Thursday upheld a controversial Arizona law that threatens to shut down businesses that intentionally hire illegal immigrants.

The ruling gives new momentum to state efforts to crack down on illegal immigration in the face of what some state officials view as lax federal enforcement of America’s borders.

Voting 5 to 3, the high court said federal immigration law does not preempt the 2007 Legal Arizona Workers Act.

“Arizona has taken the route least likely to cause tension with federal law,” Chief Justice John Roberts said in the majority opinion.

The state law bars the knowing or intentional hiring of an illegal immigrant. Arizona employers that repeatedly violate the statute may lose their license to conduct business in the state.

The law also requires employers to use the federal government’s E-Verify system, a computer database designed to match the Social Security number and driver’s license information submitted on an employment application with the same information stored in government records. Under federal law, participation in the E-Verify system is voluntary.

At issue in the case was whether a state law designed to prevent illegal immigrants from working interfered with federal immigration statutes and was thus preempted.

“[Federal immigration law] expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others,” Chief Justice Roberts wrote. “We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted.”

The majority justices also upheld Arizona’s requirement that employers use the federal E-Verify system to ensure all employees are legally authorized to work.

The E-Verify requirement “is entirely consistent with the federal law,” Roberts said. The consequences of not using E-Verify, he added, were the same under both the voluntary federal system and the mandatory Arizona one: Employers forfeit the legal presumption that they fully complied with the law.

In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg said the majority justices adopted an excessively permissive reading of federal immigration law in authorizing the Arizona statute.

Federal immigration law bars states from imposing civil or criminal sanctions on those who hire illegal immigrants. But it allows the states to adopt licensing regulations related to the employment of illegal immigrants.

The question in the Arizona case was whether the state statute is a valid “licensing” law.

“Arizona calls its statute a ‘licensing law,’ and the statute uses the word ‘licensing.’ But the statute strays beyond the bounds of the federal licensing exception,” Justice Breyer said in his dissent. “Congress did not intend its ‘licensing’ language to create so broad an exemption.”

Breyer warned that the Arizona law could lead to discrimination, based on national origin, against legal workers merely because of their physical appearance. And it could result in erroneous prosecutions and punishment in the midst of state zeal to root out and discourage illegal immigrants, he said.

The battle over the Legal Arizona Workers Act is similar to an ongoing legal fight over a newer – and tougher – Arizona immigration law, SB 1070. A federal judge issued an injunction blocking much of that law last summer, ruling that it clashed with federal immigration statutes and policies.

That decision was upheld by the Ninth Circuit Court of Appeals and is expected to soon be appealed to the US Supreme Court.

Thursday’s high court opinion upholding the Legal Arizona Workers Act provides a significant boost to Arizona Gov. Jan Brewer (R) and other state officials fighting to lift the injunction on key portions of SB 1070.

Thursday’s Supreme Court case, Chamber of Commerce v. Whiting (09-115), began several years ago when a group of business associations and civil rights groups filed suit challenging the constitutionality of the 2007 employment law.

A federal judge and a federal appeals court panel both upheld the law.

The Obama administration and the US Chamber of Commerce urged the high court to overturn the Arizona statute, arguing that it is up to the national government, not the states, to set and enforce immigration laws.

They also argued that while federal law allows the states to adopt “licensing laws,” the Arizona statute is not a genuine licensing law because rather than granting licenses, it seeks to revoke them.

Roberts rejected that argument, saying it was inconsistent with the definition embraced by Congress.

“It is also contrary to common sense,” he said. “There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.”

Justice Sonia Sotomayor wrote a separate dissent. The licensing power granted to the states by Congress, she said, was restricted to imposing licensing sanctions after a final federal determination that a person had violated federal immigration laws by employing an unauthorized worker.

Only eight justices decided the case. Justice Elena Kagan did not participate because she worked on the issue as solicitor general in the Obama administration.

Joining Roberts in the majority opinion were Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, and Clarence Thomas.