WASHINGTON — The Supreme Court on Thursday upheld an Arizona law that imposes harsh penalties on businesses that hire illegal immigrants.
The 5-to-3 decision appeared to endorse vigorous state efforts to punish
employers who intentionally hire illegal workers. The majority opinion,
written by Chief Justice John G. Roberts on behalf of the court’s five
more conservative members, said that Colorado, Mississippi, Missouri,
Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia had
recently enacted laws similar to the one at issue in the case.
The decision did not directly address a more recent Arizona law that gives the police greater authority to check the immigration status of people they stop.
The United States Court of Appeals for the Ninth Circuit blocked
enforcement of that law in April, and the case may reach the Supreme
Court soon.
The challenge to the Arizona law that was the subject of Thursday’s
decision was brought by a coalition of business and civil liberties
groups, with support from the Obama administration.
They said the law in question, the Legal Arizona Workers Act, conflicted with federal immigration policy.
The act was signed into law in 2007 by Janet Napolitano, a Democrat who
was then the state’s governor. Ms. Napolitano is now secretary of the
Department of Homeland Security.
The decision on Thursday turned mostly on the meaning of a provision of a
1986 federal law, the Immigration Reform and Control Act, which said
that it overrode “any state or local law imposing civil or criminal
sanctions (other than through licensing and similar laws) upon those
who” recruit or hire “unauthorized aliens.”
The question was whether Arizona was entitled to supplement the
penalties in the 1986 federal law with much tougher ones of its own. The
state argued that the phrase in parentheses — “other than through
licensing and similar laws” — allowed it to suspend or revoke the
business licenses of repeat offenders. Critics called that provision of
the state law a “business death penalty.”
Chief Justice Roberts wrote that the word “licensing” should be read
broadly to allow states to supplement federal efforts to prevent the
hiring of illegal workers. His decision was joined by Justices Antonin
Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and, for the most part,
Clarence Thomas.
Peter J. Spiro, who teaches immigration law at Temple University, said
the majority’s broad reading would be consequential. “In some ways, this
becomes an exception through which states can drive a truck,” he said.
“It’s definitely going to embolden anti-immigration constituencies to
work through state capitals.”
There is reason to think that those constituencies will meet with some success, judging from the fact that 13 states filed a brief supporting Arizona.
But Robin S. Conrad, a lawyer with the U.S. Chamber of Commerce’s
litigation unit, said in a statement that “the decision does not give
states or local governments a blank check to pass any and every
immigration law” and that only state laws consistent with the federal
one were permissible. The Chamber of Commerce was a plaintiff in the
suit.
Ms. Conrad added that “businesses from Main Street to Wall Street are
overwhelmed by a cacophony of conflicting state and local immigration
legislation” and that Congress should bring order to the area.
Cecillia D. Wang, a lawyer with the American Civil Liberties Union’s
Immigrants’ Rights Project, also urged a cautious reading of the
decision, saying that it was narrowly tied to the Arizona law. The
A.C.L.U. was part of the odd-bedfellows coalition that had challenged the law.
Jay Sekulow, a lawyer with the American Center for Law and Justice, a conservative public interest law firm that filed a brief
urging the court to uphold the law, said the ruling was “a victory for
Arizona and other states” that “provides a realistic roadmap” for
enacting legislation that does not run afoul of the federal law.
Justice Stephen G. Breyer, in a dissent joined by Justice Ruth Bader
Ginsburg, said the word “licensing” in the federal law should be read
narrowly to mean “employment-related licensing systems” and not all
licenses. “Why not an auto licensing law?” he asked of the majority’s
interpretation. “Why not a dog licensing law?”
Chief Justice Roberts responded that Congress could easily have limited
the phrase had it wanted to. “If we are asking questions,” he added, “a
more telling one may be why, if Congress had intended such limited
exceptions to its prohibition on state sanctions, it did not simply say
so, instead of excepting ‘licensing and similar laws’ generally?”
Chief Justice Roberts wrote that the Arizona law was a measured response
to real problems and that “licensing sanctions are imposed only when an
employer’s conduct fully justifies them.”
He added that there was no reason to fear that the state law would lead
to discrimination against Hispanics who were in the United States
lawfully.
“The most rational path for employers,” the chief justice wrote, “is to
obey the law — both the law barring the employment of unauthorized
aliens and the law prohibiting discrimination — and there is no reason
to suppose that Arizona employers will choose not to do so.”
But Justice Breyer said the state law disrupted a carefully calculated
balance between competing Congressional goals and that it “seriously
threatens the federal act’s antidiscrimination objectives.” The state
law increased penalties for hiring illegal workers, he said, but it left
“the other side of the punishment balance — the antidiscrimination side
— unchanged.”
The decision, Chamber of Commerce v. Whiting, No. 09-115, also upheld a
second aspect of the Arizona law, this one making mandatory an otherwise
voluntary federal program, E-Verify, that allows employers to validate
whether potential employees are authorized to work.
In his dissent, Justice Breyer said it was a mistake to require use of a “pilot program” that was “prone to error.”
Justice Sonia Sotomayor wrote a separate dissent. Justice Elena Kagan
recused herself from the case because she had worked on it as United
States solicitor general.
“I cannot believe,” she wrote, “that Congress intended for the 50 states
and countless localities to implement their own distinct enforcement
and adjudication procedures for deciding whether employers have employed
unauthorized aliens.”