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High court torn on Ariz. law to punish companies for hiring illegal immigrants
Acting Solicitor General Neal K. Katyal said there can be no doubt that Congress meant to reserve enforcement of such employer sanctions for the federal government.
But Chief Justice John G. Roberts Jr. sharply questioned why the exception was made for "licensing and similar laws."
Roberts said the law's challengers "are just kind of blinking over" that exception. "That is not a real reservation by Congress of this power to itself," he said.
Arizona Solicitor General Mary R. O'Grady said the state's ability to revoke the license of an employer who has twice violated the prohibition on hiring illegal workers was in the "mainstream of state police power." She said the 1986 law "took away our authority to impose civil monetary and criminal sanctions but preserved our authority to impose sanctions under this law."
That struck Justice Ruth Bader Ginsburg as an "anomaly" rather than a considered judgment by Congress. Justice Anthony M. Kennedy, who seemed supportive of Arizona at some points during the debate, agreed.
"Why would Congress want to do that?" he asked.
Justices Stephen G. Breyer and Sonia Sotomayor seemed supportive of the view that the state law intruded on federal responsibilities.
Sotomayor, the only justice who referred to "undocumented" rather than "illegal" immigrants, asked whether Congress had meant only to give states flexibility on licensing after federal authorities investigated and then decided to sanction an employer.
The justices spent little time on another challenged part of the law, one that requires Arizona employers to use the federal E-Verify system to ensure that all employees are eligible to work in this country.
But that program's reliability has been questioned, and Congress has said that the program should be voluntary. The administration argues that Arizona, therefore, cannot make it mandatory.
Justice Elena Kagan withdrew from the case because of her previous work on the issue when she was the U.S. solicitor general. That makes the case even more difficult for challengers of the law.
Because the law was upheld by the 9th Circuit, five of the remaining eight justices would have to agree to overturn the law. A tie vote would uphold the lower court's decision, although it would set no precedent.
The case is Chamber of Commerce v. Whiting.