Illegal immigration has been a hot button issue recently. The Department of Homeland Security estimates that out of 31 million foreign-born residents in the United States as of 2009, nearly 11 million were illegal. Interestingly enough, the current Secretary of Homeland Security, Janet Napolitano, signed into law the Legal Arizona Worker’s Act in 2007, when she was Governor there. It is that law which was the subject of this morning’s oral arguments at the United States Supreme Court.
The Arizona law requires employers to check the immigration status of job applicants, with the threat of penalties that include revocation of an employer’s business license if undocumented workers are hired. The District Court ruled that the Arizona law was not pre-empted by federal law, and the 9th Circuit agreed. The Supreme Court will decide whether the Arizona statute is pre-empted by Federal law, namely the Immigration Reform and Control Act of 1986. The court will also determine whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system called E-Verify, is pre-empted by a federal law that specifically makes that system voluntary.
The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress and not to the States. That’s what the U.S. Supreme Court ruled in 1876, in the case of Chy Lung v. Freeman. In 1915, in the case of Truax v. Raich, the Supreme Court found that an Arizona law denying legal aliens the right to work in many jobs violated the 14th amendment, and also interfered with the “authority to control immigration, to admit or exclude aliens,” an authority which lies solely with the Federal government.
All that sets the stage for today’s hearing. The Federal law – the Immigration Reform and Control Act – preempts any State or local law from imposing civil or criminal sanctions, other than through licensing and similar laws, upon those who employ, recruit or refer for a fee, unauthorized workers. It was whether the Arizona law fell into the category of licensing and similar laws that the court spent most of its time investigating. If Arizona’s law is determined to be a licensing law, it won’t be pre-empted by the federal law.
Justice Kennedy saw a broad definition as to what could be a license under the federal law, stating that he saw no limitation on what the State can decide is a license.
Justice Scalia joined in, stating that the Federal law didn’t limit what type of licenses would be permitted, and asking what did it intend to add to that? Barbers' licenses, beauticians' licenses? How would any of this have anything to do with the immigration laws?
Justice Sotomayor tried to turn the discussion back to the issue of preemption, saying she thought the issue of how a license is defined was irrelevant. The crux of the issue, according to Justice Sotomayor, was whether the Federal law preempted the system the Arizona law set up to determine whether employers had violated the law. However, the licensing issue remained at the forefront throughout the hour-long hearing.
If the Court agrees with the Chamber of Commerce that the Arizona law is preempted, it will be more difficult for states to regulate illegal immigration. If the Court upholds the law, businesses will have to navigate a patchwork of state employment and immigration laws.