The Obama administration wants the U.S. Supreme Court to void Arizona's 2-year-old law designed to punish companies that knowingly hire undocumented workers.
In legal papers filed Friday, Department of Justice attorneys argue that the law illegally infringes on the exclusive rights of the federal government. Acting Solicitor General Neal Katyal said it specifically runs afoul of a federal law that bars states from imposing any sort of penalties on those who employ people not in the country legally.
And Katyal said both a federal judge in Phoenix as well as the 9th Circuit Court of Appeals got it wrong in concluding that Arizona's law fits within allowable exceptions.
David Selden, attorney for the Arizona Chamber of Commerce and Industry, said Friday's intervention by the Department of Justice is a good sign. Employers groups have challenged the legality of the statute from the start.
It also is a victory for the American Civil Liberties Union and other civil rights groups who believe the law is discriminatory.
Molly Edwards, spokeswoman for the state Attorney General's Office, said it is "unfortunate that the Department of Justice has taken a belated position against Arizona's efforts to reduce the demand for illegal labor."
The move, though, portends potentially bigger problems for the state.
The Department of Justice is weighing whether to ask a federal court to invalidate SB 1070, approved by state lawmakers earlier this year, which requires police to question those they stop about their immigration status if they reasonably suspect they are in this country illegally. It also makes being an illegal immigrant a violation of state law.
Any decision to sue over SB 1070 will depend on whether the Department of Justice believes the state is treading on turf reserved exclusively for the federal government - a parallel to the conclusion federal prosecutors reached here.
The Immigration Reform and Control Act, approved by Congress in 1986, specifically precludes states and cities from imposing any civil or criminal penalties on companies for hiring illegal immigrants. But the same law allows states to have their own "licensing or similar laws."
Based on that, Arizona legislators enacted the Legal Arizona Worker Act. It allows a judge to suspend any licenses of any firm found guilty of knowingly hiring undocumented workers; a second offense within three years puts the company out of business.
Lower courts said the Arizona law fits within that exception.
The Obama administration, however, disagrees.
"The Arizona statute is not at bottom a ‘licensing or similar law,'" Katyal wrote in his brief to the high court. "It is instead a statute that prohibits the hiring of unauthorized aliens and uses suspension and revocation of all state-issued licenses as its ultimate sanction."
As proof, Katyal said nothing in the law allowing a license to be taken away requires a judge to determine if a company has the right character or qualifications to engage in the business.
"It identifies only one basis for suspending or revoking an employer's licenses - the knowing or intentional employment of an unauthorized alien," he said. "And the decision whether to suspend or revoke is made on an across-the-board basis by a state judge rather than on a license-by-license basis by the authorities who issued them."
Beyond that, Katyal said there are procedures that cover cases where federal officials accuse employers of hiring undocumented workers, including the ability to appeal. That, he said, is not the case in Arizona.
"Proceedings occur before local judges, with no possibility of federal district court review," Katyal said. And he said Arizona law, unlike its federal counterpart, has no provision banning discrimination.
Finally, he noted that the penalty under state law - including possibly being put out of business - is far more onerous than the fines allowed under federal law.