High Court Upholds Law on Illegal Hires
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Robert Barnes
The Washington Post
May 26, 2011

The Supreme Court on Thursday ruled that Arizona may revoke the business licenses of companies that knowingly employ illegal immigrants, rejecting arguments that the state’s law intrudes on the federal government’s power to control immigration.

The court ruled 5 to 3 that Congress specifically allowed states such an option, and dismissed the objections of an unusual coalition that challenged the state law: the U.S. Chamber of Commerce, civil rights groups, labor unions and the Obama administration.

The 1986 federal Immigration Reform and Control Act generally preempts states from using employer sanctions to control immigration. But Arizona took advantage of a parenthetical clause in the statute — “other than through licensing and similar laws” — to go after companies that knowingly and intentionally hired undocumented workers.

Chief Justice John G. Roberts Jr. agreed with the state’s reading of the federal law.

“It makes little sense to preserve state authority to impose sanctions through licensing, but not allow states to revoke licenses when appropriate as one of those sanctions,” he wrote.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed with the outcome.

The law at issue — the Legal Arizona Workers Act — is different from a more recent Arizona law that the Obama administration is battling in lower courts.

That law contains a provision requiring local law enforcement officials to check the immigration status of people they stop who they suspect have entered the country illegally.

A federal judge has blocked enforcement of that requirement, and the law is under review in the U.S. Court of Appeals for the 9th Circuit.

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor dissented. Justice Elena Kagan did not take part in the case because she had worked on it while President Obama’s solicitor general.

Breyer, joined by Ginsburg, said Congress did not intend its reference to licensing to give states such sweeping authority. Sotomayor would require a federal determination that someone had violated the immigration law before allowing a state to impose sanctions.

The Arizona law calls for revocation of a company’s business license if it has twice been found to knowingly and intentionally employ illegal workers. It requires companies to use a federal online program known as E-Verify — which the challengers said was unreliable — to determine whether an employee is authorized to work.

It was passed in 2007 and signed by then-Gov. Janet Napolitano (D), now Obama’s secretary of homeland security.

It was upheld by a district judge and a panel of the U.S. Court of Appeals for the 9th Circuit, but has been used sparingly.

Read more at The Washington Post.