The US Supreme Court's ruling this week to uphold the ability of Arizona and a handful of other states to shut down businesses that repeatedly and intentionally hire illegal immigrants may lead more states into experimenting with crackdowns that don't preempt federal law.
But the ruling is also likely to wake up business lobbies that until now have hesitated to complain about tougher anti-immigration measures for fear of implicitly acknowledging that their industries are employing undocumented workers.
While Thursday's ruling was narrow and specific to the licensing issue – leaving in legal limbo many aspects of other new immigration laws in states like Arizona, Utah, and Georgia – it immediately raises a question that American industry is now likely to use to confront Congress, says Muzaffar Chishti, director of the Migration Policy Institute office at New York University School of Law.
"The untalked about story is that the hiding of unauthorized workers is now much more powerful in terms of its impact on business than major violations of other laws, even those that may lead to criminal prosecution," says Mr. Chishti.
Nevertheless, the ruling is likely to give a boost to bills in states like Colorado that attempt to strengthen states' ability to sanction businesses that repeatedly hire illegal workers. While four states currently have Arizona-style licensing laws, another 13 states signed a legal brief in support of the Arizona law.
The ruling removes a legal hurdle for states that have been cautious about immigration enforcement because of the constitutional issues such laws raise, especially state preemptions of federal jurisdiction.
The Supreme Court majority generously interpreted a 1986 federal law meant to reaffirm the US government's jurisdiction over immigration matters, but which left a narrowly worded exception around business licensing. Chief Justice John Roberts, writing for the majority, said the Arizona law in question "has taken the route least likely to cause tension with federal law.”
The state law bars the knowing or intentional hiring of an illegal immigrant. Arizona employers that repeatedly violate the statute may lose their licenses to conduct business in the state.
"[The] Supreme Court on Thursday sent a strong signal that states will be free to experiment with new laws dealing with unlawful aliens living within their borders, at least when the states seek to control access to jobs," writes long-time legal analyst Lyle Denniston on scotusblog.com.
According to the National Conference of State Legislatures, in Denver, 279 bills have been introduced in 44 state legislatures so far this year that focus on employers using some form of work authorization and/or establish penalties for businesses that employ unauthorized immigrants.
But even supporters of tougher immigration laws say state lawmakers are likely to meet opposition as they try to pass laws allowing states to shut down businesses or mandating that employers use the federal E-Verify employee eligibility database.
"Many Republicans are fearful of doing it [using E-Verify] because of course they've got business supporters, people who've given them money, and they're telling them, 'Don't do this ... I'm getting cheaper labor, don't try to shut that door,' " former Colorado Congressman Tom Tancredo told KWGN News in Denver.
That debate is likely to play out in a growing number of states after Thursday's Supreme Court ruling.
"The shift I see since the heyday of the Arizona law is that employers ... have finally begun to make their presence felt in state legislatures," says Chishti, at NYU. "If they're not able to stop or rescind a particular piece of legislation, they manage to reduce it enough to reduce its impact."