The Supreme Court appeared likely Wednesday to sustain an Arizona law that threatens to take away the licenses of businesses that knowingly hire workers who are in the United States illegally.
The justices heard arguments in a case that plunges the court into the nation’s contentious debate over immigration, generally the province of the federal government.
But Arizona argued — and Justice Antonin Scalia strongly agreed — that the federal government has not meaningfully enforced immigration law, forcing the state to act. “That’s the whole problem,” Scalia said.
Business interests and civil liberties groups are challenging the law, backed by the Obama administration.
The measure was signed into law in 2007 by Democrat Janet Napolitano, then the governor of Arizona and now the administration’s Homeland Security secretary. Republican Gov. Jan Brewer, Napolitano’s successor, was at the court Wednesday to show her support for the law.
The outcome also might signal how the court will deal generally with state efforts to combat illegal immigration. A federal judge acting on a challenge by the administration already has blocked key components of a second, more controversial Arizona immigration enforcement law, known as SB1070.
Wednesday’s case concerned the employer sanctions law that prosecutors have used just three times in three years. It was intended to diminish Arizona’s role as the nation’s hub for immigrant smuggling by requiring employers to verify the eligibility of new workers through a federal database. Employers convicted of violating the law can have their business licenses suspended or revoked.
The 9th U.S. Circuit Court of Appeals in San Francisco previously upheld the law.
Carter Phillips, the Washington-based lawyer who argued for the challengers, said that a 1986 federal law prohibits states from taking action against employers unless they already have been convicted of violating the federal law. Congress had in mind an “exclusive federal enforcement scheme,” Phillips said.
The court’s liberal-leaning justices appeared open to Phillips’ argument, but Scalia and the other conservatives peppered Phillips and the Justice Department’s Neal Katyal with skeptical questions.
Chief Justice John Roberts said the federal law includes a provision that appears to allow states to take action regarding immigration through licensing and similar laws.
“You don’t disagree that whether a business hires illegal workers is related to its ability to do business,” Roberts asked Katyal, the Obama administration’s acting solicitor general.
Katyal replied that the language Roberts referred to is a narrow exception that cannot be used to create a gaping hole in the federal law.
Mary O’Grady, the Arizona state solicitor general, faced aggressive questioning from Justice Stephen Breyer, who said he was concerned that Arizona and other states were upsetting a balance struck by Congress in the 1986 law.
On the one hand, Congress wanted to dissuade employers from hiring illegal workers, he said. On the other hand, lawmakers wanted to be sure that people who are in the United States legally are not discriminated against because they may speak with an accent or look like they might be immigrants.
“Under Arizona law, every incentive is to call a close question against hiring this person,” he said.
In response, O’Grady said the state law is consistent with federal law, which she said “preserved significant state authority” to act.
Justice Elena Kagan is not participating in the case because she worked on it while serving as Obama’s solicitor general. Even if the court were to split 4-4, Arizona would win because it prevailed in the federal appeals court. Tie votes at the Supreme Court leave in place the lower court ruling, but do not set a national rule on an issue.
A decision is expected by summer.
The case is Chamber of Commerce v. Whiting, 09-115.