Supreme Court Upholds Arizona Immigration Law

In a 5-3 vote, the U.S. Supreme Court has upheld an Arizona law imposing sanctions on businesses that hire illegal aliens. The decision (below) in Chamber of Commerce v. Whiting, 09-115 was long anticipated because of its implications for a possible ruling in the more controversial Arizona provision regarding the state enforcement of immigration laws — a case making its way toward the Court. I will be discussing the case Friday morning on CNN.

The Arizona law was actually signed in 2007 by former Governor (and current Homeland Security Secretary) Janet Napolitano. The ruling that the law was not preempted holds obvious significance for those who insist that the federal immigration laws do not occupy the entire field. However, the ruling was based on a more specific provision and question of licensing. Chief Justice John Roberts wrote that “[b]ecause we conclude that the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted.”

While the federal Immigration Reform and Control Act of 1986 forbids states from imposing sanctions for hiring illegal immigrants, the law exempts “licensing and similar laws.” The Court found this exemption allowed for state law like the one in Arizona. The most important passage for the upcoming case can be found in Part II-B where four justices stated:

The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed theStates to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appropriate tools to exercise that authority.

Justice Anthony Kennedy notably remains silent, but supports the majority. He is likely to be effectively a court of one if the other Arizona law reaches the Court.

While Kagan recused herself from the case (due to prior involvement as Solicitor General), the assumption is that she would have joined Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor in dissent. Indeed, one of the most telling aspects of the decision for the upcoming appeal of Arizona’s S.B. 170 is that, while it may not give a full measure of the position of the right of the Court, it probably offers a better glimpse into the left of the Court. If these justices considered the preemption question so clear on licensing, it would seem highly likely that they would be even more confident of preemption in the approaching appeal.

Justice Stephen Breyer makes an argument that could be easily lifted and put into a review of the most recent Arizona law:

First, the state statute seriously threatens the federal Act’s anti discriminatory objectives by radically skewing the relevant penalties . . . Second, Arizona’s law subjects lawful employers to increased burdens and risks of erroneous prosecution. . . And that is my basic point. Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination. And by defining “licensing” so broadly, by bringing nearly all businesses within its scope, Arizona’s statute creates these effects statewide.

At a minimum, the decision this week will encourage continued state experimentation with immigration laws — and prime the keg for the issue in the upcoming presidential election. However, it is clear that we have four justices who would be hostile to the claims under the recent Arizona law.

It is not clear how this opinion will affect Hazleton v. Lozano, et al. (10-772), which has been held by the Court since March 18th. That case involves local city ordinances regulating both employment and access to housing for unlawful aliens living in the city.

Here is the decision: 09-115

Jonathan Turley

36 thoughts on “Supreme Court Upholds Arizona Immigration Law”

  1. He died in 1985 but this very personal museum is really a lasting reminder of
    an very remarkable man. I am not only a PC player,
    please anyone assist me to remove Dell Inspiron
    password…” We usually hear such inquiry around us.
    We’ll start our tour at Marina Grande for the north shore in the island,
    about one third of the way in from its easternmost point.

  2. Your blog is really cool to me and your topics are very relevant. I was browsing around and came across something you might find interesting. I was guilty of 3 of them with my sites. “99% of website managers are guilty of these 5 mistakes”. You will be suprised how fast they are to fix.

  3. eniobob – queue nutty to show up here telling us how this job switch of a Republican Senator’s daughter & Republican appointee to the FCC is further proof of the insidious evil that is the Obama Administration . . . in 3 . . . 2 . . .

  4. “rafflaw
    1, May 28, 2011 at 10:48 am
    one correction if I may…the greed of “many” comes to mind when we talk about Wall Street.”

    raff heres another:

    FCC Commissioner Who Approved Comcast-NBC Merger Now Headed to NBC
    Published May 12, 2011
    | Associated Press

    WASHINGTON — A top telecommunications regulator who voted to approve Comcast Corp.’s takeover of NBCUniversal in January is leaving to join the company as a lobbyist.
    Meredith Attwell Baker, one of two Republicans on the five-member Federal Communications Commission, will become senior vice president of government affairs for NBCUniversal.

    Read more:

  5. Blouise:

    With my days running into night and vice versa I don’t know if I’m up early or down late LOL!!!!:=)

  6. rafflaw,

    I hear ya … I’m thinking of the millions of young people graduating from high school and college this month and comparing those numbers to the number of “big shots” on Wall Street and in the government who worked together to make their greed lawful. I’ll amend my comment to read:

    The greed of the few means much less for all the rest.

  7. Blouise,
    one correction if I may…the greed of “many” comes to mind when we talk about Wall Street.

  8. eniobob,

    You are up early but I’m so glad you are finding a few minutes to post.

    The mention of Goldman Sachs didn’t completely ruin my morning as I have several graduation parties to visit today and I enjoy the young, fresh faces so full of hope and anticipating the road ahead.

    What makes me sad is the knowledge that thanks to institutions like Goldman Sachs and our federal Congressmen/women, the futures of the young men and women I will be toasting today are far less bright than they should have been.

    The greed of a few …

  9. MS.B:

    I hate to spoil your day but heres more of what you speak of:

    NEW YORK — With Goldman Sachs’ latest high-profile hire, the Wall Street giant is unlikely to shake its Government Sachs nickname or the reputation for exerting undue influence in Washington that it implies.

    Goldman announced Friday that it had named three-term Sen. Judd Gregg an international adviser to the bank. The New Hampshire Republican will “provide strategic advice to the firm and its clients, and assist in business development initiatives across our global franchise,” Goldman said in a statement.

  10. frank,

    The middle class has got to smarten up and fight back by electing representatives who will work for them rather than against them … of course the banks and Wall Street struck a huge blow when they stole so much of our younger generation’s money by conning them into buying over-priced homes with massive fraudulent mortgages … it drastically weakened the stability of the up and coming middle class … those young people will be digging out for a long time and too busy trying to make ends meet to find time to fight and those who managed to hold onto their houses know that selling them in the next 5 to 10 years will result in a loss.

    Those bankers, Wall Street goons, Congressmen and Senators all belong in jail for very long prison terms.

    I have to stop now … I’m getting angry and it will be hard to go to sleep.

  11. Yeah this very well known retailer brings in scores of workers from India on 2 year work visas. I never worked with any of them so I don’t know the details of the assignments but I know they were put up in corporate apartments in the burbs & bussed downtown to the offices every day. My co-contractor was India-born and only said their rates are very poor after expenses but better than they would make in India and good for their resume.

    Unemployment in Minneapolis is around 8% so my guess is they could easily fill most, if not all, of those jobs with American Taxpayers. American taxpayers that could then afford to buy the Chinese made crap they sell in their stores. Instead they just keep cutting chunks off the iceberg they float on.

    When these masters of the universe have finished killing off the American middle class who is going to support all those 3rd world factories? You won’t sell many $100 sneakers to 12 year olds who earn .75 an hour sewing Nikes.

  12. frank,

    A friend of mine’s son-in-law went to work for a contractor that supplied workers from India to American companies here in the States. The living conditions the contractor provided for the workers were terrible and they had little or no healthcare etc. He was appalled but the workers themselves told him that although he thought their living conditions were terrible, they (the workers) were much better off here as the situations at home in India were much worse. At least they had made it to the States.

    It’s amazing that the government provides visas so that these contractors can bring the people in providing them with so little and all to benefit the bottomline of some corporation. These are skilled jobs that are no longer available to the American workers who might be living right down the street from a house containing 20 or more “visa” people.

Comments are closed.