High court torn on Ariz. law to punish companies for hiring illegal immigrants

Arizona's controversial new immigration law has left one family in a frightened limbo, as they consider whether the mother should stay in Phoenix or try to leave without being arrested.
By Robert Barnes
Washington Post Staff Writer
Wednesday, December 8, 2010; 10:37 PM

The Supreme Court sounded conflicted Wednesday about whether Arizona's attempt to revoke the licenses of businesses that knowingly employ illegal immigrants intrudes on federal law or complements it.

The case pits Arizona against an unusual coalition of challengers that includes the U.S. Chamber of Commerce, civil rights groups, labor unions and the Obama administration. But that high-powered group faced a barrage of skeptical questions from the court's conservatives, which bodes well for Arizona to see its law upheld.

The state and the law's challengers agree that Congress meant for the 1986 federal Immigration Reform and Control Act to generally preempt states from using employer sanctions to control immigration. But Arizona has taken advantage of a parenthetical clause in the statute - "other than through licensing and similar laws" - to go after companies that knowingly hire illegal immigrants.

The law being challenged, the Legal Arizona Workers Act, says a company could lose its business license for knowingly hiring illegal workers - a "death penalty," in the words of Washington lawyer Carter G. Phillips, who represented the Chamber of Commerce.

The legislation was passed in 2007 and signed into law by then-Gov. Janet Napolitano, now President Obama's homeland security secretary.

It is different from a more recent Arizona law that the Obama administration is battling in lower courts. That law contains a provision requiring local law enforcement officials to check the immigration status of people they stop and to detain those suspected of entering the country illegally.

A federal judge has blocked enforcement of that requirement, and the law is under review in the U.S. Court of Appeals for the 9th Circuit.

The Supreme Court's decision in the illegal-worker case, though, might give some indication of how willing the justices are to allow states to come up with their own ways of trying to curb illegal immigration.

Justice Antonin Scalia was the most vocal member of the court in expressing sympathy for the states and suggesting that Arizona was justified in taking what he described as a "massive step."

"What Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration," Scalia told Phillips.

Phillips said that doesn't mean that states can violate what he called Congress's "carefully calculated" law to ensure uniform enforcement of immigration laws and avoid a proliferation of state and local attempts to regulate immigration.

"Congress was balancing three, at least, very difficult problems," Phillips said. "Minimizing problems on the employers, minimizing discrimination against people who are permitted to be hired, and avoiding hiring people who are not permitted to do so."

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