The Supreme Court hears about Arizona's other controversial immigration law.

Oral argument from the court.
Dec. 8 2010 7:12 PM

LAWA Land

The Supreme Court hears about Arizona's other controversial immigration law.

Oral argument at the Supreme Court today is about a controversial Arizona immigration law. No, not that one. That law, SB 1070, is the one that forces state police to check the immigration status of people they stop if they believe they are in the country illegally. Much of it has already been enjoined by a federal court and is awaiting review at the appeals courts. The Supreme Court busies itself today with that law's Mini-Me, the 2007 Legal Arizona Workers Act, which goes much further than federal immigration law in sanctioning state employers who hire illegal workers. Both today's case and the one the court will inevitably hear about SB 1070 test the same general proposition: Does federal immigration law pre-empt—or preclude—the states from passing their own, tougher immigration laws?

Justice Antonin Scalia wants to be perfectly clear this morning that if the feds had been doing a decent job of enforcing federal immigration law, none of this would be necessary. As he puts it, several times, it is the federal government's utter failure to solve the immigration crisis that has forced the states to take matters into their own hands in a "massive" way. Since 2007, 44 state and local governments have passed laws similar to Arizona's.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The plaintiffs in this suit include a curious amalgam of the U.S. Chamber of Commerce, immigrant and civil rights groups, and the Obama administration. They all argue that LAWA (as it's known) is invalid under the pre-emption doctrine, but they lost this argument at the district and appeals courts. Because the Ninth Circuit upheld LAWA, and because Elena Kagan had to recuse herself because of earlier involvement in the case, a 4-4 tie among the remaining justices means the law will stand, although he case will create no national precedent. After a tense hour of parsing and twisting and stretching the word "license" (more on this in a moment) it appears that this is precisely what will happen. It really helps to have nine justices at the Supreme Court.

Argument today mostly comes down to a question of verbiage. In 1986 Congress passed the Immigration Reform and Control Act. Opponents of Arizona's law argue today that this was intended to be a "comprehensive" scheme that swept away all state and local efforts to regulate immigration. But Arizona says that while the federal law did do away with "state or local law imposing civil or criminal sanctions (other than through licensing and similar laws)," LAWA slides in safely under that parenthetical because it is simply a "licensing law" conditioning state business licenses on compliance with certain immigration requirements.

Advertisement

Carter Phillips represents the Chamber of Commerce this morning, and he opens with the argument that the 1986 federal statute was intended to be a comprehensive scheme for regulating immigration and employment issues—and that it was carefully calibrated to balance the government interest in deterring illegal workers against the equally compelling interest in deterring employers from shunning legal workers who happen to be minorities. Because a second violation of the Arizona law allows for the revocation of one's business license, Phillips refers to it as "the death penalty for business." This phrase doesn't produce the wailing and rending of garments one might have expected from the Roberts Court.

When Phillips explains that the Arizona law is "not a licensing law," Justice Anthony Kennedy interrupts to ask what "jurisprudential principle" limits the definition of licensing. Phillips replies that "it seems to me quite remarkable to think that Congress intended—through a parenthetical referring to 'licensing laws'—to allow the state to adopt an entire alternative shadow enforcement mechanism."

Scalia says, well, of course everyone expected the federal law to be enforced effectively. But "Arizona and other states are in serious trouble financially and for other reasons because of—of unrestrained immigration. And, therefore, they had to take this very massive step." Phillips wisely declines to remark on the legal relevance of this comment but points out that the purpose of a single federal law was to avoid having "40,000 different localities offering up their view of licensing."

Justice Sonia Sotomayor tries to clarify that Phillips has no objection to states retaining the power to revoke licenses to do business, but that the central conflict here is in whether the federal government has pre-empted "the adjudication of that issue."

TODAY IN SLATE

Politics

Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don’t Work at Facebook. My Doctors Want Me to Freeze My Eggs.

Republicans Want the Government to Listen to the American Public on Ebola. That’s a Horrible Idea.

The Most Ingenious Teaching Device Ever Invented

Tom Hanks Has a Short Story in the New Yorker. It’s Not Good.

Brow Beat

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The Procedural Rule That Could Prevent Gay Marriage From Reaching SCOTUS Again

  News & Politics
Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
  Business
Moneybox
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
  Life
Outward
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
  Technology
Future Tense
Oct. 20 2014 4:59 PM Canadian Town Cancels Outdoor Halloween Because Polar Bears
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.