August 12, 2011
Yesterday’s Supreme Court decision upholding Arizona’s law requiring employers to use E-verify or risk losing their business licenses will, like all Supreme Court decisions, take some time to implement and discover the unintended consequences.
However yesterday’s decision does not signals how the Supreme Court might rule on SB 1070 when, and if, it finally makes its way to the Supreme Court, which could be this winter with a decision in the Spring of 2012 before the Presidential elections.
Even though challenges to both laws involve the idea of preemption—whether the federal government has the sole authority to make and enforce laws on a particular issue—the underlying laws in question are significantly different.
The Support Our Law Enforcement and Safe Neighborhoods Act (introduced as Arizona Senate Bill 1070 and thus often referred to simply as Arizona SB 1070) is a legislative Act in the U.S. state of Arizona that was the broadest and strictest anti-illegal immigration measure in recent U.S. history. It has received national and international attention and has spurred considerable controversy.
The Obama administration challenged the law in Federal Court, and on July 28, 2010, U.S. District Court Judge Susan Bolton enjoined enforcement of several parts of it. The law required state and local police officers to check a person's immigration status, required immigrants to carry identification documents with them, and made it illegal for undocumented workers to solicit employment in public.
The 9th Circuit upheld Bolton's ruling in April this year, finding that Congress "explicitly required that in enforcing federal immigration law, state and local officers 'shall' be directed by the Attorney General."
U.S. federal law requires all aliens over the age of 14 who remain in the United States for longer than 30 days to register with the U.S. government, and to have registration documents in their possession at all times. The Arizona Act additionally makes it a state misdemeanor crime for an alien to be in Arizona without carrying the required documents, requires that state law enforcement officers attempt to determine an individual's immigration status during a "lawful stop, detention or arrest" when there is reasonable suspicion that the individual is an illegal alien, bars state or local officials or agencies from restricting enforcement of federal immigration laws, and cracks down on those sheltering, hiring and transporting illegal aliens
The Legal Arizona Workers Act was an effort to regulate the employment of undocumented immigrants by permitting the suspension or revocation of business licenses in the event that employers knowingly hired undocumented immigrants.
A majority of the Supreme Court rejected the argument that Arizona had overreached, relying on a specific exception in the Immigration and Nationality Act that said that state governments retained the authority to regulate employment verification through licensing. That fairly narrow exception decided the case, despite strong arguments about the federal scheme for regulating immigration and the costs that a mandatory employment verification system imposes.
Yesterday’s Decision More About Employment than Immigration
Yesterday’s decision was more about employment than immigration. While states have historically possessed the power to regulate employers within their borders, they have no authority to regulate immigration itself. This is the exclusive domain of the federal government—and the issue at stake in the SB 1070 litigation.
SB 1070, after all, has as its express purpose to make “attrition through enforcement” the policy of the state, which appears to be prejudicial and racist in nature. In other words, the state of Arizona decided in SB 1070 to make it so difficult for immigrants to live there that they would just leave. And while it was written to root out undocumented immigrants, the practical effect and the most objectionable to many was to make anyone who appeared vaguely foreign or different the possible target of questioning and racial profiling. Moreover, it created criminal penalties for being in the state illegally, essentially layering another level of punishment on people regardless of federal law.
This is important, because Arizona’s SB 1070 essentially sought to replace federal immigration law with an even tougher standard. The only employment-related provision of SB 1070 sought to criminalize work by undocumented immigrants. The Ninth Circuit found this provision unconstitutional, in part because Congress decided to penalize employers, not employees, for the hiring of undocumented workers.
The Two Laws are Radically Different
Today’s decision affirmed a prior ruling by the Ninth Circuit Court of Appeals that Arizona’s law was not preempted. By contrast, the District Court has already found SB 1070 to be preempted by federal law and the Court of Appeals found the arguments of plaintiffs so compelling that it issued an injunction, preventing the vast majority of the law from going into effect until the Court issues its opinion. Thus, two courts have already given support to the idea that there are broad issues of preemption here that weren’t under the microscope in the Whiting decision. Both the breadth and the substantive questions at issue in the two laws are radically different.
Impact of Employment Decision
Nonetheless, today’s decision is an unfortunate one, as it will ultimately either drive more people underground, lead to more discrimination, or create more problems for Arizona businesses. Nor will mandatory E-verify solve the problems Arizona sought to address—attempting to regulate undocumented employment without providing a means for legalization is a no-win proposition. Until Congress passes comprehensive immigration reform that balances benefits and enforcement, E-verify alone will never win the day.
States Considering Similar Laws to Arizona
Kentucky: The Senate passed a bill this week making it a state crime to be an illegal immigrant.The House is majority Democratic; it's unclear whether lawmakers there will also approve the bill.
Colorado: Republicans have introduced a slightly more permissive version of SB 1070. It would allow but not require police officers to arrest a person who proved to be in the country illegally. Its chance of passage are slim, as the Senate is Democratic-controlled and the Democratic governor has also expressed reservations about the Arizona-like bill, according to the Denver ABC affiliate.
Virginia: The state's attorney general has written that he thinks state law already allows police to question suspects about their immigration status -- but some lawmakers want to introduce a bill to make that practice mandatory. Another bill seeks to check the immigration status of every child in public school.
Nebraska: The Senate will consider an Arizona copycat law as well as a bill requiring all employers to use the federal E-Verify system when hiring employees.
Florida: Even though the state has a conservative new governor as well as a GOP-controlled House and Senate, the state's Arizona-like bill is not gaining a ton of support so far, according to the Orlando Sentinel. That's not entirely surprising, given that the Cuban exile community is a significant GOP constituency in Florida. The state representative who backs the bill may amend it so that police ask about immigration status only during a criminal investigation rather than any "lawful stop" (which could include a traffic stop).
Texas: A whopping 40 bills related to immigration have been introduced in the Legislature, including an Arizona copycat bill. GOP Rep. Debbie Riddle camped outside the statehouse for 36 hours to introduce her anti-illegal immigration bills first.
Utah: Ahead of the Legislature convening for the year on Monday, both sides of the immigration question will hold a public debate, the Associated Press writes. One lawmaker wants to enact a state version of comprehensive immigration reform allowing illegal immigrants to "register" with the state. Another group wants to follow in Arizona's footsteps and introduce other bills designed to discourage illegal immigrants from living in the state.
Tennessee: A group of lawmakers has vowed to introduce its own version of SB 1070. The state has a GOP-controlled House and Senate and a Republican governor.
South Carolina: An Arizona-style bill is moving through subcommittees in the Legislature, suggesting it may be come up for a floor vote soon.
Pennsylvania: State Rep. Daryl Metcalfe is backing both an Arizona-type law and a law redefining birthright citizenship to exclude children of illegal immigrants. And when the new GOP governor was attorney general, he filed a brief in support of SB 1070.
Oklahoma: Legislators say they will introduce several anti-illegal immigration laws this session. The state Chamber of Commerce is putting up some opposition.
Kansas: The new secretary of state, Kris Kobach, is urging the Legislature to pass a near-identical version of SB 1070. Kobach helped write Arizona's law.
Indiana: A state senator has introduced a slightly modified version of Arizona's law, according to the Indianapolis Star. The bill would also bar the use of any language other than English in government buildings.
The Act was signed into law by Governor Jan Brewer on April 23, 2010. It was scheduled to go into effect on July 29, 2010, ninety days after the end of the legislative session. Legal challenges over its constitutionality and compliance with civil rights law were filed, including one by the United States Department of Justice, that also asked for an injunction against enforcement of the law. The day before the law was to take effect, a federal judge issued a preliminary injunction that blocked the law's most controversial provisions. Arizona has sought, unsuccessfully to date, to reverse that decision in the federal appeals courts.
Brewer asks the Supreme Court to allow Arizona to enforce the law for "three reasons":
"First, this case implicates issues of extraordinary importance, as underscored by the federal government's extraordinary decision to initiate a facial challenge to Arizona's law before it could take effect. No one can deny that the problem of unlawful immigration is significant or that it has a disproportionate impact on border states. It is thus no small matter to conclude, as the Ninth Circuit did, that only the national government in Washington can address this problem.
"Second, the decision below creates an express and acknowledged circuit split over the preemptive force of the federal immigration laws. The Tenth Circuit views those laws as affirmatively encouraging cooperative enforcement by states; the Ninth Circuit reads such authorization for specific cooperation as negating any inherent state law enforcement authority.
"Third, the decision below is wrong and flatly inconsistent with this court's precedents. While this court has repeatedly emphasized that outside of the First Amendment context a law capable of constitutional application is not facially invalid, the Ninth Circuit refused to even consider whether the relevant provisions of S.B. 1070 were capable of any constitutional application. While this court has emphasized that state efforts to cooperate with the enforcement of federal law are primarily governed by state law and are a healthy component of our federal system, the Ninth Circuit viewed such efforts with what amounts to a presumption of unconstitutionality. And while this court has routinely viewed parallel prohibitions-where state and federal law prohibit the exact same conduct-as not implicating issues of preemption whether express or implied, the Ninth Circuit held that state efforts to facilitate enforcement or impose parallel prohibitions on conduct prohibited by federal immigration law are verboten."
Brewer claims that 400,000 people live in Arizona illegally, and make up about 7 percent of the state's workforce. She claims the number of undocumented immigrants has increased by about 10,000 per year from 2000 to 2010, and "the federal efforts remain demonstrably inadequate."
Brewer adds that though the impact of illegal immigration on Arizona is unique, at least nine other states "have begun requiring that law enforcement officers conduct immigration status checks in various circumstances surrounding investigations, arrests and jail bookings."
The petition cites new immigration laws in Alabama and Mississippi that have "targeted the supply side of the unlawful employment problem by prohibiting the unauthorized acceptance or performance of work by an alien," and adds Alabama and South Carolina have "state-law prohibitions of violations of the federal laws."
"For too long the federal government has turned a blind eye as this problem has manifested itself in the form of drop houses in our neighborhoods and crime in our communities," Brewer said in a statement. "SB 1070 was Arizona's way of saying that we won't wait patiently for federal action any longer. If the federal government won't enforce its immigration laws, we will."
Brewer is represented by her General Counsel Joseph Sciarotta Jr.; Paul Clement, a former U.S. solicitor general now with the Bancroft law firm of Washington, D.C., with assistance from Viet Dinh; and by John Bouma with Snel