Supreme Court upholds Ariz. employer sanctions law

WASHINGTON  A Supreme Court decision upholding an Arizona law penalizing businesses that hire illegal immigrants could spur other states to try similar measures aimed at stopping people from crossing the border illegally.

In their 5-3 decision Thursday, the justices made clear that states can play a role in what is generally a federal system of immigration regulation. The court upheld a 2007 Arizona law that revokes the business license of companies that hire unauthorized workers, saying it met an exception to the usual federal prohibition on states setting civil or criminal penalties in this area.

The court, however, offered no clear signal of how it might rule on a more controversial and closely watched Arizona anti-immigration law, signed in 2010 by Republican Gov. Jan Brewer and now facing a separate, higher-profile legal challenge.

That law, often referred to as Arizona SB 1070, requires police to investigate the status of anyone an arresting officer suspects might be here illegally. The Obama administration and other critics say it could lead to racial profiling.

Federal courts have blocked enforcement of that provision while litigation is pending; Brewer says the state will appeal the injunction to the high court this summer.

While national attention has focused on that sweeping law targeting individuals, Thursday's case related to employers is significant for its endorsement of a state effort to crack down on illegal workers.

The court "gives the green light to state use of licensing laws as a tool of immigration enforcement," says Temple University law professor Peter Spiro, predicting that advocates for restrictions will likely push other states to adopt measures similar to Arizona. "But that doesn't mean they will get their way," added Spiro, who specializes in immigration law. "Business interests are very powerful in state capitals."

Jay Sekulow, chief counsel at the American Center for Law and Justice, among the groups that backed Arizona at the court, said, "I think you're going to see this become a catalyst for state action, in licensing and other areas." He termed the ruling "a road map" for states that want "to protect their borders and citizens."

The Federation for American Immigration Reform (FAIR) also said it hoped state legislatures would move on new restrictions.

Omar Jadwat, an immigration rights lawyer for the American Civil Liberties Union, which took the lead with the Chamber of Commerce in suing Arizona, expressed regret about the ruling but stressed its narrowness and said it would not affect resolution of the dispute over SB 1070.

Civil rights and business groups had argued that the Arizona law clashes with comprehensive U.S. immigration policy and, in a practical vein, burdens lawful employers and could lead to discrimination based on race and national origin. Lawyer Carter Phillips, who represented the challengers, told the justices during arguments in December that Congress feared that if employers faced heavy penalties, they would "err on the side of not hiring" people who looked foreign but were authorized to work here.

The key question was whether the Arizona penalty was overridden by federal immigration rules that bar "any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ" illegal immigrants.

In his opinion for the court, Chief Justice John Roberts said the sanction is permitted under the "licensing" exemption. He stressed that the Arizona law covers only "knowing or intentional violations" of the U.S. prohibition on hiring illegal workers and that the penalty is triggered only after the second violation.

"An employer acting in good faith need have no fear of the sanctions," Roberts wrote.

The court in Chamber of Commerce v. Whiting also upheld an Arizona provision requiring all employers in the state to use a federal electronic verification system to confirm that workers are authorized to take jobs. The federal government makes that E-verify system optional, and challengers said the records are incomplete and prone to error.

Roberts was joined by Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and, for most of his opinion, Clarence Thomas.

Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. The court's ninth justice, Elena Kagan, who previously was U.S. solicitor general, did not participate.

The U.S. government had sided with the challengers, saying the state's law was not truly a "licensing" provision because it did not involve the granting of licenses, only the revocation.

Roberts noted in his opinion that at least eight other states, including Colorado, Mississippi and Pennsylvania, have followed Arizona with laws attempting to impose sanctions for the hiring of illegal workers.

Dissenting justices said the federal system was intended to prevent such a patchwork of state laws and said the majority too broadly construed the licensing exception.

Justice Breyer, in a dissenting opinion joined by Ginsburg, wrote that state penalties "might prove more effective in stopping the hiring of unauthorized aliens. But they are unlikely to do so consistent with Congress' other critically important goals, in particular, Congress' efforts to protect from discrimination legal workers who look or sound foreign."