WASHINGTON (CN) – Supreme Court justices seemed split on Wednesday as to whether an Arizona law allowing the state to revoke the business licenses of employers who hire illegal immigrants is preempted by the federal comprehensive immigration scheme for employing illegal immigrants.
“How can you reconcile [congressional] intent to prevent discrimination against people because of their appearance or accent? How do you reconcile that with Arizona’s law?” Justice Stephen Breyer asked Arizona Solicitor General Mary O’Grady, arguing for the state.
A group of business owners, civil rights lawyers and immigrants’ advocacy groups claimed that the Arizona law is unconstitutional, but their claims were struck down in district court, which ruled that the Arizona could use state licensing laws to enforce the federal Immigration Reform and Control Act, under the savings clause. The 9th Circuit affirmed.
O’Grady said Arizona’s law was a “natural consequence of the savings clause,” which reserves states’ rights to regulate employment through licensing.
The parties and justices differed on the definition of licensing laws.
Justice Antonin Scalia sympathized with the state, saying state licensing laws were the “only option” left to the states for enforcing federal immigration laws because the government expressly forbade states from imposing fines on businesses that hired illegal immigrants.
Attorney Carter Phillips, arguing for petitioners, said that Arizona was using licensing laws as an “alternate shadow enforcement mechanism” to take federal enforcement of immigration laws into its own hands.
Scalia said that when the federal government wrote the statute, no one would have expected that they would not enforce it.
“Expectations change when the federal government has simply not enforced the immigration restrictions,” Scalia said.
Phillips and Acting Solicitor General Neal Katyal, supporting petitioners, argued that Arizona was misconstruing the meaning of licensing laws, which traditionally applied to farm labor contracting laws. They said Congress never would have intended to allow 40,000 different localities and 50 states to enforce their view of licensing.
Justices Samuel Alito and Anthony Kennedy questioned the petitioners’ and the government’s views of licensing law.
Alito posed a hypothetical scenario in which the District of Columbia, which requires every business to hold a business license, passed an ordinance saying a business would lose its license if it knowingly hired an illegal immigrant.
Kennedy continued: “Why is it suddenly not a license because the state imposes an additional condition, where it was a license before?”
Phillips drew a distinction between licensing laws, which he said dealt with granting licenses, and actions with respect to licenses, such as revoking a license.
Justice Ruth Bader Ginsburg asked Arizona why the federal government would create an anomaly by forbidding states to impose fines on businesses for hiring illegal immigrants but then allow them to revoke business licenses.
O’Grady said Congress was allowing the state to hold businesses accountable under their licenses, which the state grants. She added that the government may have taken away states’ authority to impose civil monetary and criminal sanctions, but it specifically preserved the states’ authority to revoke business licenses in the savings clause.
Breyer said the bigger anomaly was that the Arizona law does nothing to employers who discriminate in hiring – business owners face no penalty if they refuse to hire applicants with Hispanic accents out of fear that they might be illegal immigrants – but the law says “if you hire an illegal immigrant, your business is dead.”
“How can you reconcile that intent to prevent discrimination against people because of their appearance or accent? How do you reconcile that with Arizona’s law?” Breyer asked.
Ginsburg asked how Arizona can justify requiring employers to use E-Verify, the federal government’s voluntary system for verifying an applicant’s citizenship.
“How can Arizona take a federal resource, which the federal government says is voluntary except in certain circumstances, and turn it into something that is mandatory?” Ginsburg asked.
Arizona does not impose a sanction on businesses that do not use E-Verify.
Kennedy called it “a classic example of a state doing something that is inconsistent with a federal requirement.”
O’Grady argued that the state can make E-Verify mandatory as the action advances the federal government’s goals with the program, not detracts.
Justice Elena Kagan recused herself from the case, presumably because of her work as former solicitor general. The case is Chamber of Commerce v. Whiting, no. 09-115.