Can Arizona Punish Employers for Hiring Illegal Immigrants?

Earlier this year, the words "controversial Arizona law" and "illegal immigrant" conjured up images of police stopping people to check their papers. While that statute -- which requires Arizona police to demand ID papers from anyone they suspect is in the country illegally -- is likely to get to the U.S. Supreme Court in a year or two, on Wednesday the court is hearing arguments about a different, potentially much more effective Arizona law aimed at ending illegal immigration.

The primary driver of illegal immigration is employment opportunity -- the chance to earn enough to better one's life. Going after workers, as long as there are plentiful employers to hire them, has proved an ineffective strategy. So in 2007 Arizona passed the "Legal Arizona Workers Act," which targets employers who knowingly employ illegal immigrants. If an employer is caught knowingly employing illegal immigrants, the employer gets its Arizona business license suspended, without which it cannot legally operate in the state. If the employer is caught twice or more, its license can be revoked -- a punishment being referred to as the "business death penalty."

Business and immigrant rights groups immediately challenged the law as unconstitutional, losing at trial and on appeal. Today they make their case to the Supreme Court, aided by six friend-of-the-court briefs, including one filed by the U.S. However, Justice Elena Kagan won't have a role in deciding this case, presumably because as solicitor general she was involved in it and would at least appear biased in favor of striking down the law. Her recusal creates the possibility of a 4-4 tie, however unlikely that may be, which would result in the law being upheld, since Arizona was the most recent winner in the case.

A Case of Preemption?

The key legal issue is "preemption" -- the idea that federal laws trump state laws. This notion is grounded in the "Supremacy Clause" of our Constitution, which states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land. . . ."

For preemption to apply, the state law must either explicitly or implicitly conflict with federal law. The federal law at issue in this case is the "Immigration Reform and Control Act of 1986," which establishes a pretty comprehensive scheme of regulation, precisely the sort of thing that triggers broad preemption. The reason Arizona has won so far, however, is that the federal law specifically allows states to continue regulating business licenses:

"[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." (italics added)

A clear but detailed preview of the legal issues was laid out by Jessica E. Slavin and Alyssa Johnson for the American Bar Association.

If Arizona wins this case, presumably many other deeply frustrated states will follow suit, notwithstanding the lobbying fire power of the business, immigration and labor groups lined up against the Arizona law, and surely against any copycat efforts. As with all legislation aimed at illegal immigration, the biggest downside is the potential discriminatory impact against people who are here legally, including native born Americans of Latino descent. But in comparison to the policing law that caused the uproar a few months back, this approach poses much less discriminatory risk.

A decision isn't expected until spring.

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