Arizona gains in fight to punish employers of illegal immigrants 

Arizona won a round in the national fight over immigration last week in a case with implications for the 2012 election.

In 2007, then-Gov. Janet Napolitano signed the Legal Arizona Workers Act of 2007, which allowed Arizona courts to suspend or revoke business licenses of those who knowingly or intentionally hire illegal immigrants. The U.S. Chamber of Commerce filed a lawsuit, along with various civil-liberties and immigrant-rights groups, alleging the state law is pre-empted by federal law.

On May 26, in Chamber of Commerce v. Whiting, the Supreme Court upheld Arizona’s law 5-3 (Justice Elena Kagan recused herself). Although Congress can trump state law where the Constitution gives Congress authority to act, the court said current immigration law — which Congress adopted in 1986 — expressly allows states to make business-licensing decisions and impose licensing penalties for employers that hire illegal immigrants.

The court also rejected the Chamber of Commerce’s argument that Arizona’s requirement that employers use the E-Verify system to confirm work eligibility is preempted by federal law. Roberts noted that the federal government’s brief contradicted the chamber’s claim that this law drains federal resources, and that the Obama administration’s brief contradicted the chamber’s separate argument that E-Verify was unreliable.

Justice Sonia Sotomayor dissented separately. She argued that Congress’ provision authorizing states to make licensing decisions should be ignored, and that courts should instead look to the overall statute to “illuminate Congress’ intent.”

She also argued that the law does not allow states the information they need to determine whether a worker is here legally. Only if the feds determine that an employer illegally hired can Arizona consider sanctioning that employer.

Nonetheless, the court majority concluded to the contrary that, “Arizona has taken the route least likely to cause tension with federal law,” thus paving the way for other states to enact similar legislation.

This decision doesn’t necessarily protect Arizona’s newer and more controversial immigration law, SB 1070, which was put on ice by the 9th Circuit and may soon appear before the Supreme Court as well.

The new statute goes beyond licensing, providing new power and responsibility to local law enforcement regarding illegal immigrants, as well as new sanctions against those who violate immigration law.

It is unclear how the five justices who upheld the first Arizona law will deal with the new law. But we might find out in 2012, right before a presidential election in which immigration is sure to be a hot issue.

Examiner legal contributor Ken Klukowski is a fellow with the American Civil Rights Union.

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