Arizona’s Employer Sanctions Law Upheld on ‘Narrow’ Grounds

Posted by AzBlueMeanie:

When you need to know what really happened at the U.S. Supreme Court, you need to turn to the expert, Lyle Denniston at Scotusblog.com. Here is Mr. Denniston's take on Chamber of Commerce v. Whiting, the challenge to Arizona's Employer Sanctions Law. Opinion recap: Shared role on aliens’ jobs : SCOTUSblog:

A divided Supreme Court on Thursday sent a strong signal that states will be free to experiment with new laws dealing with unlawful aliens living within their borders, at least when the states seek to control access to jobs.  The usual argument that immigration policy has to be uniform, across the nation, would appear to have a significant loophole. 

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Arizona’s legislature and other state leaders have been in the forefront of a spreading effort — among states, as well as some local governments — to crack down more severely on aliens who are illegally in the U.S., especially in the wake of Congress’s unwillingness or inability to adopt new federal controls.  Those outside-of-Washington efforts proved successful legally in the decision just issued in Chamber of Commerce, et al.., v. Whiting, et al. (docket 09-115).

The decision technically did not go beyond the specific Arizona law at issue but, between the lines, seemed to have some broader themes.  There was even a hint that Arizona’s more controversial alien control law — now widely known as “S.B. 1070″ — may not fare as well as its worker control law now has, particularly its provision that gives police wide authority to arrest and detain any individual that an officer believes is an unlawful alien.  Arizona is preparing to file a new appeal, probably during the summer, to try to revive S.B. 1070 after key provisions were blocked in April by the Ninth Circuit Court.

The Court majority on Thursday — 5-3 on the main points, 4-3 on less significant points — rejected claims by business and civil rights groups that Arizona’s four-year-old Legal Arizona Workers Act intrudes upon federal immigration policy on aliens’ employment.  In legal terminology, the Court ruled that federal law did not expressly or by implication “preempt” the state statute.   Not the least significant of the Court’s declarations was a resuscitation of a 1976 precedent, DeCanas v. Bica, speaking broadly of a federal-state partnership on restricting aliens’ jobs.  But that ruling came down ten years before  Congress passed a sweeping new law that generally pushed aside state efforts, except for what had seemed since then to be a fairly narrowly worded exception.

The provision, centrally involved in the new decision, barred states and local governments from enforcing “any law” that imposed punishment on those who hired unlawful aliens, but it made an exception for punishment imposed by “licensing and similar laws.”

On Thursday, however, the Court majority read that “licensing” exception generously, finding that Arizona’s 2007 law imposing more onerous penalties than federal law does for hiring unlawful aliens “fall[s] squarely” within that opening.  That, in fact, was the main disagreement between the majority, led by Chief Justice John G. Roberts, Jr., and the three dissenting Justices. 

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[Chief Justice] Roberts accepted every argument that the state of Arizona had made, about how narrow in scope its initiative was, about how it closely tracked the objectives of the 1986 federal law, about how it would in no way disrupt federal controls, and about how the federal government could adapt its own enforcement duties to accommodate new cooperative efforts it would have to take to help Arizona enforce its law.  Both the Breyer and Sotomayor opinions interpreted the state law as reaching well beyond the scope of federal controls, in ways that would actively frustrate federal efforts and compromise the need for uniformity in dealing with unlawful aliens.

The Chief Justice, responding to the complaints of business and civil rights groups (and of the dissenting Justices) about the supposed sweep of Arizona’s law, wrote that “Arizona has taken the route least likely to cause tension with federal law.”  After summarizing the perceived narrowness of what the state had done, the main opinion commented: “If even this gives rise to impermissible conflicts with federal law, then there really is no way for the state to implement licensing sanctions, contrary to the express terms of the savings clause” — that is, the clause providing a licensing exemption to general preemption of state worker laws.

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There was no mention of S.B. 1070 in Thursday’s opinion.  Any reference to state laws other than the Arizona statute upheld was to worker control laws passed in 12 other states, all predating the 1986 federal immigration law.

It is far from clear that the same majority that assembled Thursday would come together in a decision on S.B. 1070. The controversy over that law  raises preemption issues, of course, but it also raises issued about potential racial discrimination based upon police actions aimed at people who “look like” aliens.  If the case over S.B. 1070 should turn, in some ways, upon the question of bias through “racial profiling,” that might raise issues about violation of federal workplace anti-discrimination laws.   The Chief Justice’s opinion mentioned those anti-bias laws Thursday, suggesting that they could be invoked against employers who, trying to avoid violating the Arizona worker control law, simply refused to hire anyone they thought might be an unlawful alien, just to be on the safe side.

Even before Arizona’s appeal on S.B. 1070 reaches the Court, the Justices now have on their docket two cases that might provide hints, when the Justices react to them, about how the Court feels about other issues of immigration policy in the wake of Whiting.  One is an appeal in a California case testing whether states may legally give unlawful alien students a break on their tuition at state colleges and universities, and the other is an appeal by the city of Hazleton, Pa., seeking to revive a broad alien control law that deals not only with jobs, but also with housing opportunities — a law that cannot now be enforced, under a Third Circuit Court ruling.

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The Court apparently has been holding the Hazleton, Pa., appeal until it decided the Whiting case.  That case (Hazleton v. Lozano, et al., docket 10-772) involves a series of local city ordinances, enacted beginning in 2006, that seek to regulate both employment and access to housing for unlawful aliens living in the city.  The measures, among the first by a local jurisdiction, were apparently prompted by an influx of Latino families in Hazleton, arriving mainly from New York and New Jersey in the early 2000s.   The Third Circuit has upheld injunctions against enforcing the ordinances.

That case was scheduled for consideration by the Justices at their Conference on March 18, but no action on it was taken at that time or since.  It thus is likely to be put before one of the Justices’ Conferences in June, now that the Whiting decision has come down.

Those cases, like Whiting, turn on issues of alleged conflict between federal law and state or local government actions, but like the dispute over Arizona’s S.B. 170, the issues in each of the pending cases go beyond what was at stake in Whiting.

The Hazelton case is relevant because those local ordinances were drafted by Kris Kobach, a lawyer with the Immigartion Law Reform Institute, the legal arm of the anti-immigration Federation for American Immigration Reform (FAIR). Kobach is credited as a co-author, along with the American Legislative Exchange Council (ALEC), of SB 1070, and the anti-immigrant sanctions bills similar to the Hazelton ordinances sponsored by "King" Russell Pearce. Kobach was the lead attorney defending the city of Hazelton before being elected the Secretary of State of Kansas in 2010. "What's The Matter With Kansas?" indeed.

Full Opinion (.pdf) http://www.supremecourt.gov/opinions/10pdf/09-115.pdf.