Court Upholds Employer Sanctions Law

Last week, the Supreme Court in Chamber of Commerce et al v. Whiting et al upheld an Arizona law authorizing harsh sanctions against employers who knowingly hire illegal aliens. In allowing the Arizona Legal Workers Act of 2007 (ALWA) to stand, the Court signaled that states are free to establish statutory schemes for enforcement of federal immigration law, at least within certain parameters. This summer Arizona plans to appeal from a Ninth circuit ruling that blocked key provisions of SB1070, the state’s far-reaching immigration enforcement law. SB 1070 enthusiasts, including co-sponsor State Sen. Russell Pearce and Federation for American Immigration Reform (FAIR)’s Bob Dane, are warming up for a victory lap.

Not so fast…

At issue in Whiting was whether Arizona could impose sanctions on employers for hiring illegal aliens in violation of federal immigration law. The Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful to recruit or hire an alien knowing the alien is unauthorized to work in the country, explicitly preempts state and local governments from imposing civil or criminal sanctions. It contains one conspicuous exception, however, allowing states to enforce its provisions “through licensing and similar laws.”

And as Chief Justice John Roberts, writing for the majority, observes, “That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure…” Thus, Arizona’s employee sanctions law complements federal enforcement on its own terms.

ALWA also mandates that Arizona employers use E-Verify system to confirm that new employees are legally authorized to work in this country. E-Verify is an internet-based system created by Congress under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), to improve the verification process. Although the provision of IIRIRA setting up the program that includes E-Verify constrains federal action, as Chief Justice Roberts points out, “it contains no language circumscribing state action.” The federal government has consistently encouraged states to use E-Verify.

Strange bedfellows…

The plaintiffs in Whiting were an unlikely alliance of business and civil rights groups, including the ACLU. The Obama administration, while not a party, opposes the Arizona law. Although current Homeland Security Secretary Janet Napolitano signed ALWA into law, her primary objective was to avoid an even harsher employer sanctions law then under consideration by state lawmakers.

Eight additional states – Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia – have enacted similar employer sanctions laws. In the aftermath of Whiting, more states inevitably will follow suit Arizona’s law seems to be working. According to Department of Homeland Security Population Estimates (and these are truly guesstimates), while the number of unauthorized immigrants nationwide fell by seven percent between January 2008 and January 2009, the Arizona’s illegal alien population decreased by nearly 18 percent during that same time period.

SB 1070 is different …

If the high court had struck down the Legal Workers Act, SB 1070 wouldn’t have stood a chance. That said, SB 1070’s blocked provisions, especially those forbidding police from releasing arrestees until their immigration status is determined and requiring non-citizens to carry documentation, pose a far more difficult challenge.

The Court’s rulings on two immigration law challenges currently in the pipeline may provide clues. In Martinez vs. Regents of the University of California, California’s policy of granting lower, in-state college tuition to illegal immigrants who graduate from its high schools is being challenged as violating a 1996 federal law that prohibits public institutions from giving benefits to illegal immigrants. (Incidentally, ten additional states provide in-state tuition rates to illegal aliens based on residency.)

And in Lozano v. City of Hazelton, Pennsylvania, Hazleton is appealing from a Third circuit injunction of local ordinances intended to control the activities of illegal aliens within the municipality. Hazelton’s ordinance imposes the same E-Verify requirements and sanctions on employers as ALWA. But in addition, Hazelton goes after landlords who “harbor illegal aliens.” Hazelton requires those seeking rental housing in the city to provide evidence of their legal status and imposes sanctions on landlords who knowingly rent to illegal aliens. California’s tuition scheme and Hazelton’s rental registration requirements are similar to SB 1070 in that they attempt to advantage (California) or control (Hazelton) illegal aliens without benefit of an explicit exception to the federal government’s preemption in the area of immigration enforcement.

Not just border states…

State lawmakers across the nation are seeking solutions to the mounting problems of illegal immigration – drugs, gangs, expense, and the threat of terrorism. According to the National Conference of State Legislatures, in the first three months of this year, state legislators introduced 1,538 bills and resolutions relating to immigrants and refugees. Most are designed to make life uncomfortable for illegal aliens, ultimately encouraging self-deportation. What the Court will deem permissible state and local action in this area, especially in face of the federal government’s inaction, is crucial but by no means clear.

As for SB 1070, the state of Arizona has until this July to file its official petition for certiorari with the Supreme Court. It will likely be late September or early October before the Court announces whether it will hear the case.