Trial Run For S.B. 1070?

WASHINGTON, D.C. — In a case fraught with political peril for the Obama Administration, the Supreme Court heard oral arguments in Chamber of Commerce v. Whiting on Wednesday. The court’s ruling in this case could give other states (44 states have various immigration laws that are currently pending) and municipalities frustrated with the federal government’s lax enforcement of federal immigration laws more latitude to enact laws to control immigration within their borders and could potentially influence whether Arizona’s more high-profile, broader law, S.B. 1070, which required officers to check the immigration status of people stopped or detained for legal reasons, will be deemed constitutional.

At issue in this week’s proceeding was whether federal laws preempt an Arizona statute that revokes the business license of employers who repeatedly hire illegal aliens and mandates that all employers use the federal E-Verify electronic database system to check the citizenship status of potential employees.

Associate Justice Antonin Scalia said during oral arguments, in reference to how broad a state’s ability to “license” its businesses is, that due to “unrestrained immigration,” many states, particularly those in the Southwest, are in “serious trouble” because of the burdens that illegal aliens impose upon local states and municipalities and sympathized with states that felt that enacting their own regulations was “the only option the federal government left us” because of the federal government’s failure to successfully enforce its own immigration laws. Chief Justice John Roberts and Associate Justice Samuel Alito echoed Scalia’s sentiment that federal law may not preempt this particular Arizona statute.

The law in question, the Legal Arizona Workers Act (“LAWA”), was signed into law in 2007 by then-Democratic Gov. Janet Napolitano and supported by current Republican Gov. Jan Brewer, who was present at the oral arguments.  In signing the legislation, Napolitano said the law’s punitive aspects would serve as a “death penalty” to employers who repeatedly hired unauthorized workers.  Now, Napolitano is in the unenviable position of being Obama’s secretary of Homeland Security, under which lie the agencies responsible for enforcing the federal government’s immigration laws.

The Arizona law has survived multiple court challenges. After a federal district court rejected various constitutional challenges, the  U.S. 9th Circuit Court of Appeals affirmed the district court’s ruling. The 9th Circuit held that the Arizona law was permissible because federal law allowed the states to regulate employment of illegal aliens through “licensing and similar laws.” The Ninth Circuit also upheld the aspect of the Arizona law that mandates business use E-Verify to screen its potential employees even though the use of the system was voluntary under federal law, holding that the E-Verify provision was not expressly or impliedly preempted by federal law because Congress “could have, but did not, expressly forbid” states from requiring businesses to use E-Verify.

Further complicating things for the Obama Administration is that Obama repeatedly took the position on the campaign trail in 2008 that employers who hired illegal aliens should be subject to a “crackdown” and “tough enforcement standards.” Despite this past rhetoric, the Obama administration joined civil rights and immigrants’ rights groups in challenging the Arizona statute. 

The Obama Administration was also joined by the Chamber of Commerce. This alliance between the Obama Administration and business groups was even stranger because during the 2010 midterm elections, the Obama administration accused the Chamber of Commerce of accepting foreign money to fund its domestic agenda even though the administration did not have any documented facts to support that assertion.

Another wrinkle in this case is the recusal of Associate Justice Elena Kagan, Obama’s most recent liberal appointee to the bench, because she had been Obama’s solicitor general when the Obama Administration was reviewing this case. As a result, those looking to strike down the Arizona law will now need five of the eight justices to agree with them, because in the event that there is a 4-4 tie, the law would stand. That means that even if Associate Justice Anthony Kennedy, the consummate swing vote, sides with those seeking to overturn the law, they would need one justice from the Court’s conservative bloc –  Roberts,  Alito, Clarence Thomas, and  Scalia – to come to their side, which seems very unlikely.

The Court’s decision will be an important harbinger for what is sure to be more contentious litigation down the road, particularly involving Arizona’s S.B. 1070, which seems destined to come before the Supreme Court. A U.S. District Court judge struck down that law as unconstitutional and issued a preliminary injunction. An appeal of that decision is pending before the U.S. 9th Circuit Court of Appeals.