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

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."

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.

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