Today’s decision by the U.S. Supreme Court to uphold a 2007 Arizona state law punishing businesses that hire illegal aliens has just thrown a huge monkey wrench into the nation’s immigration policy debate.
In fact, it’s a landmark decision that pushes the boundary between federal and state authority over immigration laws closer to the federalist principle that states have a right to initiate their own immigration laws — a huge blow to traditionalists, including Obama Justice Department lawyers, who insist that the Constitution gives the federal government a near-monopoly on the making and enforcing of immigration laws.
The 2007 law in question, known as the Legal Arizona Workers Act (LAWA), allows state authorities to suspend and — if necessary — revoke the business licenses of employers who knowingly hire illegal aliens. Even more striking, the law mandates that employers adopt a workplace verification system known as “E-Verify” to ensure that prospective employees are in the country legally.
Two lower courts ruled in 2008 that LAWA was constitutional, despite furious challenges from a coalition of civil rights groups, immigration rights groups, and business groups. Business groups worry that the sanctions law will interfere with their ability to hire and exploit cheap foreign labor.
The two lower courts, and now the Supreme Court, cited a critical but little-known 1976 Supreme Court decision upholding a state employer sanctions law in California, as well as the 1986 Immigration Reform and Control Act (IRCA), which established a new federal employer sanctions regime but explicitly excluded issues relating to “business licensing” from the scope of the law.
Chief Justice John Roberts cited that “savings clause” in his majority ruling upholding LAWA as constitutional. Three liberal justices — including Sonia Sotomayor — disagreed, saying the 1986 law “pre-empted” LAWA. Elena Kagan, citing a conflict of interest, had earlier recused herself from the Court’s deliberations. The final vote was 5-3.
The Obama administration had hoped that the Supreme Court would strike down Arizona’s 2007 law as part of a push to eliminate the patchwork of state laws that has grown up in the wake of Congress’s failure to pass meaningful immigration reform legislation.
Instead, the Court’s latest decision is likely to do just the opposite: embolden conservatives — and even some liberals who favor local “sanctuary” laws that protect illegal immigrants from being deported — to pass even more state-level laws.
The Court’s decision will have two immediate effects. First, it will protect the employer sanctions laws in the dozen or so states that have them from being overturned. Some of those laws are copycat Arizona laws, while others go slightly beyond current federal law but could still have been subject to legal challenge.
Second, the Court’s decision is likely to raise fresh doubts about the Obama administration’s core constitutional argument against Arizona’s better-known — and more controversial — “show me your papers, please” enforcement law, SB 1070, which a federal appeals court has agreed to place on hold. Arizona recently announced that it will appeal that decision to the Supreme Court.
Another implication of the Court’s decision is its impact on the congressional debate on workplace enforcement. Conservatives have been pushing for E-Verify, a federal workplace enforcement system largely restricted to the public sector, to be implemented nationwide. Critics, including supporters of an “amnesty” program, have argued that the system is still too technically flawed to be phased in and requires further study.
The Supreme Court’s decision could also have important implications for Utah’s new guest-worker law, which critics say also infringes on the federal government’s constitutional “primacy” in the area of immigration policy. Passed two months ago, the Utah guest-worker law goes further than any state immigration law to date by allowing state authorities to negotiate directly with Mexico over the provision of visas to Mexican laborers seeking to work for U.S. firms on temporary labor contracts.
To implement the law, Utah would need a formal waiver from the federal government, which by law currently provides all U.S. visas to visiting foreign nationals.
Alternatively, the Obama administration could try to have the Utah law overturned by the U.S. Supreme Court, and despite the latest Arizona decision, it could well win, given the far-reaching scope of the Utah law and the lack of any precedent for state involvement in visa control.
Then again, the way things are going, you just never know.
Stewart J. Lawrence is a Washington, D.C.-based public policy analyst who writes frequently on immigration and Latino affairs. He is also founder and managing director of Puentes & Associates, Inc., a bilingual survey research and communications firm.