Arizona illegal immigrant employment law before Supreme Court

Lawmakers in Arizona have long complained that the federal government is not aggressively enforcing federal immigration statutes. They are attempting to fill what they view as a dangerous vacuum by passing their own tough measures.

Faced with the prospect of strict enforcement of a new regime of laws at the state level, a group of business associations and civil rights organizations filed suit challenging the constitutionality of Arizona’s 2007 employment law.

They argue that it conflicts with the comprehensive regulation of immigration put in place by Congress.

Washington lawyer Carter Phillips told the justices that the state law interferes with an attempt by Congress to provide incentives for employers to avoid hiring illegal immigrants, but at the same time not impose such severe sanctions that employers might begin discriminating against prospective workers because of their race or ethnicity.

Mr. Phillips said under the federal scheme a business might face a $250 fine, while under the Arizona statute the same firm potentially faces loss of its ability to conduct business in Arizona.

In passing the federal immigration law in 1996, Congress said the newly-enacted measure would “preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ ... unauthorized aliens.”

A key question in the case is whether the Legal Arizona Workers Act is the kind of licensing or “other similar law” Congress had in mind.

Justice Anthony Kennedy questioned Phillips’ narrow reading of the licensing provision. “I see no limitation on what the state can decide is a license in any jurisprudential principle that you cited,” he said.

Acting Solicitor General Neal Katyal said state licensing laws should complement the federal regulatory scheme. He said, for instance, a state should only take action against a business license holder after the business is found by federal authorities to have violated federal immigration laws. Such a regime does not conflict with the goals or priorities of federal enforcement efforts, he said.

Arizona officials reject this view. They say Congress left enough room in the statute for states to enforce their own laws and regulations related to the presence of illegal immigrants in their state. Ms. O'Grady said these efforts are well within traditional police powers that are reserved to the states.

Justice Elena Kagan did not participate in the case, leaving eight justices to decide the matter. Arizona won in both the district court and appeals court, with both courts ruling that the statute was not preempted by federal law.

Under court rules, if the justices split 4-4 on the case, the lower court decision is affirmed.

A decision is expected by June 2011.

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