Will High Court Back AZ Crackdown on Employers Who Hire Illegal Aliens?

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Will High Court Back AZ Crackdown on Employers Who Hire Illegal Aliens?
Saturday, 11 December 2010 08:46 Tom Fitton
In November, I reported to you that Judicial Watch filed an amicus curiae (“friend of the court”) brief on behalf of Arizona State Senator Russell Pearce in the U.S. Supreme Court supporting Arizona’s “Legal Arizona Workers Act.” (Pearce will become President of the Arizona State Senate next month.)
The Legal Arizona Workers Act was crafted by State Senator Pearce to penalize by suspending or revoking their state and local licenses Arizona businesses that knowingly hire illegal aliens. The law also requires employers to check the legal status of their job applicants by using a free online federal program called “E-Verify,” which checks names and identifying documents to determine if these individuals are eligible to work in the United States.

Well the Supreme Court held a highly anticipated argument in the case on Wednesday. I attended the arguments with Senator Pearce and my Judicial Watch attorney colleagues and here’s my read: It looks promising that State Senator Pearce’s law will be upheld for the reasons we outlined in our brief.
And that was pretty much the takeaway by the press as well. CNN reported the Court offered “tenuous support” for the law. While Bloomberg suggested the Court was clearly “inclined” to uphold the lower court decision, which validated the law:
U.S. Supreme Court justices signaled they are inclined to uphold an Arizona law that threatens companies with the revocation of their corporate charters if they hire illegal aliens.
Chief Justice John Roberts and Justice Antonin Scalia took the lead in aiming a barrage of questions at a lawyer challenging the measure in an hour-long hearing in Washington. Roberts pointed to a federal statute that carves out a role for states while Scalia focused on what he said was the U.S. government’s failure to enforce its immigration laws.
“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 said.
A ruling upholding the measure would spur enactment of similar laws elsewhere, advocates on both sides of the issue say. The case also may provide a hint as to the court’s approach to other state immigration measures, including a separate Arizona statute that gives local police a greater role in arresting illegal immigrants.
(As you know, Judicial Watch is heavily involved in that “other” major illegal immigration case, which is currently before the U.S. Court of Appeals for the Ninth Circuit. The Obama administration filed a lawsuit against the State of Arizona in an attempt to invalidate Arizona’s new get-tough illegal immigration law. JW represents Senator Pearce, who authored that legislation as well.)
Aside from whatever conclusions can be drawn by the Court’s line of questioning, the U.S. Chamber of Commerce and the illegal alien lobby groups challenging the Legal Arizona Worker’s Act have an uphill battle.
Liberal Justice Elena Kagan is recused from the case because of her work on this issue while serving as Solicitor General. That means the illegal immigration lobby would have to convince 5 of the 8 remaining Justices to overturn the lower court ruling. A tie would uphold the lower court ruling.
As The Washington Post notes, “Justices Stephen G. Breyer and Sonia Sotomayor seemed most supportive of the view that the law intruded on federal responsibilities.” Staying true to her “empathic” tendencies, Sotomayor was the only Justice who refused to use the word “illegal” when referring to illegal aliens, opting instead for the term “undocumented.” (Our Corruption Chronicles blog has the details.) And Justice Breyer, in judicial activist form, noted how he liked to look beyond the “text” of laws for “enlightenment.” You can read the transcript of the argument here.
Regarding the legal arguments, the key federal statute in question, which was implemented in 1986, says that states cannot penalize companies for hiring illegal aliens “except through licensing and similar laws,” a clause that gives Arizona all of the permission it needs to implement its law.
“Congress swept pretty broadly,” Justice Roberts said during the hearing. “It said not just ‘licensing laws’ but ‘licensing and similar laws.’”
As Judicial Watch noted in its amicus brief, which you can read in full here, State Senator Pearce was very mindful of the intent of Congress when crafting his law:
Senator Pearce authored legislation that is consistent with federal law. The “Legal Arizona Workers Act” prohibits employers from knowingly or intentionally employing unauthorized workers. Additionally, all Arizona employers must use the federal “E-Verify” program to confirm the employment eligibility of new employees. The “Legal Arizona Workers Act” falls well within the traditional police powers of the State. This Court therefore must reject Petitioners’ attempt to protect scofflaw employers at the expense of legal Arizona workers by overturning well-established law.
The Supreme Court is expected to resolve this case by July 2011.
Following the Supreme Court hearing, Judicial Watch held an educational panel across town at the National Press Club entitled, “What Next in the Battle over Illegal Immigration?” with State Senator Pearce. I heard plenty of positive reviews from those who watched it live on the Internet, so I’m sure you’ll enjoy Senator Pearce’s remarks. He’s a remarkable man, a fine leader, and a patriot. You can see the video for yourself here.
http://www.rightsidenews.com/2010121...al-aliens.html