The nation’s highest court has determined there is room for states to enforce federal immigration laws regarding employment, a ruling that proponents and critics are now parsing for any indication on how the Supreme Court will view SB1070.
In a 5-3 vote, the U.S. Supreme Court on May 26 rejected the U.S. Chamber of Commerce’s arguments against Arizona’s employer sanctions and said the state’s licensing law is not pre-empted by the federal Immigration Reform and Control Act.
Backers expectedly cheered the ruling. And while critics are disappointed with the ruling, some said the prism that the high court used in deciding the employer sanctions case may bode well for their arguments against SB1070. As it did with the employer sanctions law, the Obama administration is claiming states are pre-empted from enforcing immigration laws.
The critics of Arizona’s controversial SB1070, major pieces of which have been blocked by the courts, noted that the U.S. Supreme Court took pains in saying Arizona’s employer sanctions law falls within the confines of the federal Immigration Reform and Control Act (IRCA), which prohibits the hiring of undocumented workers.
That law precludes states from imposing civil or criminal sanctions against business that hire undocumented workers, but preserves state authority to impose sanctions through “licensing and similar laws.”
There’s no such expressed exception in other areas of immigration enforcement.
To critics, the justices considered congressional intent and asserted that the states may only enforce immigration measures in areas where the federal government wants them to.
“We have no trouble with that approach,” said Dan Pochoda, a lawyer with Arizona’s chapter of the American Civil Liberties Union.
Paul Bender, who teaches constitutional law at Arizona State University, echoed that view.
“I think there’s a sign in here that they might say SB1070 is unconstitutional, even though this one is constitutional, because in upholding this one, (Chief Justice John) Roberts goes out of his way to say that the states are really controlled by the federal government in how they enforce employer sanctions law,” Bender said. “They can only do it if the federal government has made a determination that the person is illegal and he (Roberts) says that means that they won’t conflict with federal law. SB1070 doesn’t have that kind of guarantee.”
SB1070 permits the state to go off on its own in enforcing immigration laws, Bender said.
But he said it’s easy to try and read too much into Roberts’ opinion on the employer sanctions case. At the end of the day, there’s really no telling how the high court may rule on SB1070 based on its decision on employer sanctions.
“The signals go in either direction and it is very hard to predict,” Bender said.
Sen. Kyrsten Sinema, D-Phoenix, also said the latest court decision has no bearing on SB1070 because the high court is faced with two distinct questions in the two cases.
Sinema said with employer sanctions, the question is: What kind of sanctions may states impose?
“With SB1070, the question is: Where the supremacy stops and state sovereignty starts?” she said.
Meanwhile, the 9th Circuit Court recently upheld a district court’s decision to block key provisions of SB1070 and Gov. Jan Brewer had announced the state would appeal directly to the U.S. Supreme Court.
Immigration hawks at the Capitol said the Supreme Court’s decision in this case bodes well for SB1070.
“That is an important statement. That sends a pretty clear signal to me that we are headed for U.S. Supreme Court support for SB1070, as well,” said Senate President Russell Pearce, who authored the employer sanctions law while serving in the House. Pearce is also the author of SB1070.
“This is a huge victory for America and the American worker. It is a defeat for the open-borders, profits-over-patriotism crowd. It is a death penalty for employers who continue to hire illegals and displace American workers,” Pearce said in a written statement.
Brewer said states are now free to “take down the ‘Help Wanted’ sign for illegal aliens in their states.”
“Today’s decision also acknowledges that federalism is alive and well. The Court validated this long-standing principle by noting that ‘a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act,’” Brewer said in a written statement.
“In light of today’s decision, I am more adamant than ever that states do have a complimentary (sic) role in enforcing federal immigration laws, despite the Obama Administration’s opposition at every turn,” she added.
For House Speaker Andy Tobin, the court’s message is unmistakable: “To our critics who say Arizona has no role in immigration related issues, the Supreme Court has said otherwise.”
Rep. John Kavanagh, R-Fountain Hills and a close ally of Pearce, said the ruling shows that the U.S. Supreme Court is willing to give states “latitude in picking up the slack from the federal government.
“They’re two peas in the same pod, and we expect the same outcome,” he said.
For many, the court decision ends a chapter in the Arizona’s ongoing fight to reduce illegal immigration by trying to go after businesses that hire undocumented workers.
“That’s one of the areas (where) we’ve been waiting for guidance from the Supreme Court, and they’ve given us guidance. They said, as far as employer sanctions, we’re on the right track,” said Sen. John McComish, R-Phoenix.
Meanwhile, Arizona Chamber of Commerce and Industry president and CEO Glenn Hamer said while the ruling is disappointing, the state’s business community has been encouraged that the law’s implementation “thus far has been fair and even-handed.”
Hamer said the decision will likely entice other states to pass their own immigration laws, which should serve as an impetus for Congress to craft comprehensive immigration reform.
“Unless we want to promote a crazy-quilt of employee verification and immigration laws across the country, Congress and the administration must pass meaningful immigration reform on the federal level, which the Arizona Chamber continues to believe is the proper level to deal with all of the issues related to this issue. Perhaps this decision will ultimately result in increased pressure for this to occur,” he said.
What the ruling bodes for similar immigration proposals, including those that were introduced and rejected in the Arizona Legislature this year, remains to be seen.
Constantin Querard, a Republican political consultant, suspects that those measures will be back on the table next session.
“I don’t know to what degree the ruling will encourage legislators to vote ‘yes.’” Querard said. “I suspect they’re more likely to change their votes as a result of just pressure from voters and the fact that it’s an election year as opposed to the Supreme Court (ruling).”
— House Reporter Caitlin Coakley contributed to this article.