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.
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.
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."
Acting Solicitor Gen. Neal Katyal has 10 minutes to represent the Obama administration, and he uses it to try to persuade the court that the 1986 federal law "broadly swept away state and local laws, pre-empting any sanction upon those who employ unauthorized aliens." The parenthetical exempting "licensing laws," he says, was only Congress trying to "preserve the state's and localities' traditional power for fitness to do business."
Arizona Solicitor General Mary O'Grady opens with the argument that "through their police powers, states traditionally have the authority to regulate the conduct of employers within their jurisdiction to determine what conduct warrants issuance of a state license." Justice Ruth Bader Ginsburg interrupts. Isn't it a bit odd, she asks, that under the federal statute, "Arizona cannot impose a fine even in a modest amount, but it can revoke someone's license to do business?"
Again Scalia jumps in. "Perhaps Congress never expected that the states would have to resort to such massive measures," he says. It's all because the federal law isn't being enforced!
Justice Stephen Breyer observes that Congress carefully balanced the interests of discouraging illegal workers and protecting minorities. And then "Arizona comes along and says: 'I'll tell you what: If you discriminate, you know what happens to you? Nothing. But if you hire an illegal immigrant, your business is dead.'" O'Grady runs into some more trouble with the court's liberals because the Arizona law requires employers to use a federal system called E-Verify to check employee immigration status, but the system was intended by the feds to be voluntary and is prone to frequent errors. Breyer points out that an employer using the system would end up firing perfectly legal workers while Ginsburg protests that "this is a federal resource, and the federal government has said, 'We want this to be voluntary.' How can Arizona set the rules on a federal resource?"
Justice Anthony Kennedy is similarly bothered by the mandatory use of the E-Verify system: "You are taking the mechanism that Congress said will be a pilot program that is optional and you are making it mandatory," he tells O'Grady. "It seems to me that's almost a classic example of a state doing something that is inconsistent with a federal requirement."
There is yet more wrangling about legislative intent and whether the Arizona system is merely a humble licensing scheme, and then Phillips rises for his three-minute rebuttal. He manages to name-check Justices Sotomayor, Breyer, Samuel Alito, and Scalia in that very brief time—a record, I suspect—although at this point it's fairly clear that at least Alito, Chief Justice John Roberts, Scalia, and probably Clarence Thomas will have no trouble upholding this Arizona immigration law.
None of this tells us much about the fate of the mother of all immigration laws, which raises different pre-emption issues and won't be heard this term. But it certainly suggests that there is a good chunk of the court that isn't terribly troubled by the prospect of the states jumping into the immigration game if they feel that the feds aren't playing to win.