The nation’s high court agreed Monday to review Arizona’s law that punishes employers who knowingly hire undocumented workers.
Without comment, the justices said they want to review lower court rulings that found the law does not infringe on the exclusive right of the federal government to control immigration policy. Both a trial judge and the 9th Circuit Court of Appeals said the Arizona law fits within a narrow exception to federal statutes.
Monday’s decision could be the best chance for a coalition of business and civil rights groups to strike down the law: It takes the votes of four of the nine justices just to hear a case.
Sen. Russell Pearce, R-Mesa, the architect of the law said he is “very concerned’’ that the court might have taken the case because of political pressure from the business community. And Pearce said he always assumed three of the justices would never see things his way.
“They don’t believe in states’ rights,’’ he said. “They don’t believe in the Constitution, really.’’
But Pearce said he remains convinced the majority of justices, after hearing the arguments, eventually will allow the Arizona law to remain in place.
The decision of the justices to take a closer look followed legal briefs filed last month by the U.S. Department of Justice urging the high court to intercede in the lawsuit whose plaintiffs run from the Arizona Chamber of Commerce to the American Civil Liberties Union. Acting Solicitor General Neal Katyal said the Arizona law 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.
That brief took on political overtones on Monday as confirmation hearings began in Washington for Elena Kagan to become the newest justice of the U.S. Supreme Court.
In his opening statement, Sen. Jon Kyl, R-Ariz., said he is “deeply troubled’’ by her decision, as the solicitor general to urge the Supreme Court to review and strike down the Arizona law.
“I think there are legitimate questions about whether the brief authorized by Ms. Kagan, which flies in the face of the plain language of the law and urges the Supreme Court to strike these enforcement provisions down, was motivated by political influence at the White House and within the Department of Justice,’’ Kyl said during his 10-minute statement. Kyl pointed to the unanimous 9th Circuit ruling that concluded states can punish companies by taking away their business licenses.
That decision to intercede by the solicitor general, which is part of the U.S. Department of Justice, is significant because it also comes as that agency is deciding whether to file suit on its own challenging another Arizona law, one that imposes new requirements on state and local police to check immigration status of some of the people they stop. That law, which will take effect July 29 unless blocked, also makes it a violation of state law to be in this country illegally.
In fact, Julie Pace, one of the attorneys representing business groups challenging the employer sanctions law, said whatever the Supreme Court decides on employer sanctions could be a clue on how the justices feel about SB 1070.
“It won’t totally decide it,’’ she said. “But it may provide hints and guidance as to how the Supreme Court views preemption issues in states adopting all these laws.’’
Central to both questions is how far states can go in dealing with issues of illegal immigration.
In this case, the 1986 federal Immigration Reform and Control Act 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.’’
Using that exception, the Legislature in 2007 approved a law that says a state judge may suspend any and all licenses and permits of any company found guilty of knowingly hiring illegal immigrants. A second violation within three years results in permanent revocation.
Lower court said that the statute fits within the exception.
But challengers said the judges, at least so far, are misinterpreting the law.
Specifically, Pace said states can take away licenses.
But she said a firm first has to be found guilty by a federal court or similar process of knowingly hiring undocumented workers. They contend state judges lack legal authority to make that decision — specifically that a particular worker is an illegal immigrant — and that there is no adequate protection in state courts for companies accused of breaking the law.
The issue of federal preemption of punishment of errant companies is just one of the matters the high court will have to consider.
There also is the question of whether Arizona can require employers to use the federal government’s E-Verify system to check to see whether a new employee is legally entitled to work in this country. Federal law makes use of the system voluntary.
Attorney General Terry Goddard, who is defending the law, said in a prepared statement he understands why the Supreme Court might be interested in hearing arguments about the law.
"There is no doubt that the Arizona law is on the cutting edge,'' the statement said. But Goddard said he shares Pearce's belief the high court will uphold the statute.