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
I am with Mike S. and Blouise that all corporations should be held accountable for hiring illegal and legal aliens at the expense of qualified citizens.
Blouise – the last contract I worked was for a major American discount retailer. Managers there had a quota of jobs they were expected to move to India. It was explained to me that they paid 20% what it would cost them to hire an American. They calculate that they need to hire 3 to get the same quantity of work done but that still saved them 40% but doing the work in India. This of course is great for employment in India but really is starting to affect their bottom line because Americans can’t afford their Chinese made shit any more.
I literally trained in my 3 replacements.
On a partisan, rather than legal, view – this really is an example of the Tea Party biting the hand that feeds it. Yes, I know the law has been in the works for a while and was signed by Napolitano, but it’s still a piece of the Tea Party mindset: The view that immigration is such a problem that even scared businesses should be punished over the issue.
When folks whine and moan about illegal immigration, I tend to ask them how much more they’re willing to pay for various goods and services as the price for ending the flow of cheap/exploitable workers. I tend to not get very coherent responses.
The Koch Brothers and the Chamber of Commerce may be realizing that what they thought would be a nice smoke screen of raving hysterics over homosexuality, abortion and health care is turning out to be a bit of a fire on their lawn, and the wind is starting to blow that smoke back into their faces. Let’s see if they keep squirting lighter fluid on to the heap or if they start spraying water on it before or after the 2012 election cycle.
“On a national level we should also deal with companies like Microsoft which for years have been importing Indian computer specialists to replace Americans at half the cost. We should deny work visas in situations like this.” (Mike Spindell)
Good call and should become policy
Corporate Donations Ban Unconstitutional, Judge Rules
MATTHEW BARAKAT 05/27/11 12:13 PM ET
“ALEXANDRIA, Va. — A judge has ruled that the campaign-finance law banning corporations from making contributions to federal candidates is unconstitutional, citing the Supreme Court’s landmark Citizens United decision last year in his analysis.”
http://www.huffingtonpost.com/2011/05/27/corporate-donations-ban-ruling_n_868085.html
Like the proverbial stopped clock getting things right twice a day,
SCOTUS decided correctly and Arizona actually passed a good law.
Too often Corporations have used foreign labor to keep wages low.
While they have the right to maximize their profits, we the people have the right to refuse to deal with them and to examine if they are hiring illegal immigrants to cut costs. On a national level we should also deal with companies like Microsoft which for years have been importing Indian computer specialists to replace Americans at half the cost. We should deny work visas in situations like this.
Just a laymans question,how many cases has Justice Kagan recused herself from?
It has been more than one,and I’m just a little puzzled,for this is something that you don’t hear happening as much as she has done lately,or is it my imagination?
I’ve read that the Republican controlled legislature (in Az) called the Dems bluff when this law was passed: The focus had been on the illegal immigrants per se and the cry was to punish business instead, with the theory being the Republicans would never do that. Well they did. In light of that, for me, it is funny to read the comments continuing to stereotype people.
rcampbell:
That’s my take on the decision, but I want to read through the thing carefully.
Mike A
Are they not granting that a state can indeed sanction companies chartered within that state, while compelling them to accept the supremacy of verifying an applicant’s status at the federal jurisdiction level thereby recognizing the fed as the sole source of determining that status and NOT giving that determining power over to the individual states and county sheriffs and city police forces?
I’ve only had time to skim the opinion, but my initial reaction is that the preemption doctrine should not bar the enactment of state penal provisions that are not inconsistent with the federal regulatory scheme. Therefore, the decision should not be predictive of the majority’s ultimate position on the constitutionality of Arizona’s S.B. 170.
I find it funny to see anti-immigration folks (read that as Republicans) trying to claim credit for this finding (their calling it a victory for states’ rights to get into the Federal gov’t’s immigration business) while at the same time ignoring the truth as previous posters have pointed out. This law was fought hammer and tong by the AZ business community (again read as the exact same AZ Republicans who came up with SR 1070). Construction firms, landscapers, and the entire restaurant industry refused to accept responsibility for providing the jobs that bring the illegals and that pad their profit line. They didn’t want to use E-Verify because, as faulty as it may be, it holds them responsible for their decision. This law was passed during Janet Napolitano’s administration and now she’s in charge of the E-Verify program.
“O’Keefe is still on probation due to a misdemeanor conviction and cannot travel outside of New Jersey.” -Huffington Post article
Thanks for posting the link, eniobob. I trust that he’ll screw up again…
Where’s Tootie railing against this intrusion on private enterprise.
But all is not lost on the amazement front:
An organization founded by conservative filmmaker and self-proclaimed “muckraking journalist” James O’Keefe has been granted nonprofit status by the IRS.
http://www.huffingtonpost.com/2011/05/26/irs-grants-james-okeefe-nonprofit_n_867574.html
theHoundDawg:
That about sums it up.
I have to say I was stunned. Here we have what is the most business friendly court, at least in my long memory if not forever. I cannot think of a past case where those 5 fell out of their clown car, squirted seltzer on precedent, the Constitution and common sense and didn’t come to the conclusion that whatever
Lolabusiness wants business gets.I sometimes wish I could get inside their heads and understand what they are really thinking. Then I consider the words out of some of their mouths & know it is better left unexplored.
Not a good day for the US Chamber of Commerce and the rest of the Big-Business/Mega-Corp-owned-GOP who thought their last puppet President Bush had ensured their future with his Supreme Court appointments. They must be boiling as they see this roadblock to their continued stream of cheap labor.
So does this not make some sense…..then again…the Texas Two Step Groping Law….get the No Fly Zone….