High court might review employer sanctions

The ability of Arizona to go after companies that hire undocumented workers could depend on the views of the Obama administration.

In an unusual move, the U.S. Supreme Court has asked a top official at the Department of Justice to weigh in on claims by businesses and others that Congress never intended for state and local governments to enact their own programs designed to weed out and punish errant employers. The order, issued Monday, invites the solicitor general to file briefs "expressing the views of the United States."

David Selden, an attorney who has been at the forefront of challenging the Arizona law, said he sees the move, at the very least, as a sign the justices want to review a federal appellate court ruling upholding the law that took effect early last year.

Potentially more significant Selden said those comments from the solicitor general could work in favor of the businesses he represents who contend that Congress always intended to have only the federal government enforce immigration law.

That presumes, however, that the administration sees things the way Selden wants.

"It does put the Obama administration in the position of having to take a stand as to what the view of the administration are with respect to illegal immigration," he said.

The issue has created an usual alliance of businesses, now being led by the U.S. Chamber of Commerce, and various Hispanic and civil rights organizations, some of who are seen as friendly to the administration and some which are not.

Both object to the law which requires companies to determine the legal status of new workers through the federal government's E-Verify online database. The law also allows a state judge to suspend - and potentially revoke - the ability of any company found guilty of knowingly hiring undocumented workers to do business in Arizona.

And the request for administration input comes as Obama has promised to make the issue of illegal immigration one of its top priorities for the coming year.

"I would hope that this is going to be a legal issue, not a political issue," Selden said. "But there's some mixture of both."

And the question of whether Arizona lawmakers acted illegally could be colored by another factor: It was Homeland Security Secretary Janet Napolitano who, as governor, signed Arizona's employer sanctions statute into law.

Central to the question facing the high court is exactly what Congress meant in approving the 1986 Immigration Reform and Control Act. That law specifically precludes states and cities from imposing any civil or criminal penalties on companies for their hiring practices.

But Congress did provide an exemption for "licensing and similar laws."

Based on that, both a federal trial judge in Phoenix and, last year, the 9th U.S. Circuit Court of Appeals ruled that Congress specifically allowed states to enact exactly the kind of laws that Arizona has passed - and to impose the kind of penalties the state law allows.

The judges also rejected the contention that state lawmakers acted illegally in requiring employers to use the E-Verify system and to fire those found not to be in this country legally. And they concluded there are sufficient legal protections in the law for companies charged with hiring undocumented workers to allow them to argue to a judge that they did not, in fact, violate the law.

Selden said he believes a case can be made to the U.S. Supreme Court that Congress never intended for there to be a "patchwork of state and local laws" dealing with undocumented workers.

Still, challengers to the law face the hurdle that Congress did, in fact, include that exemption for licenses.

It is that exemption that Arizona lawmakers used to draft the law permitting judges to put firms out of business. Selden said, however, he believes the high court can be convinced that legislators here are reading too much into that exemption.

"It makes no sense for Congress to have written a law ... to mean that you can take away a person's business license but you cannot fine them $100," he said. In essence, Selden said, that creates a law "where the only penalty is business capital punishment on an issue where Congress clearly intended to balance the immigration enforcement very carefully against the anti-discrimination provisions" of the law.

He said businesses read the license exemption to permit the state to deny or revoke operating authority of any firm which has previously been found guilty in a federal proceeding of violating immigration law. Selden said there was never any intent to let local prosecutors investigate possible violations or for state judges to determine guilt or innocence.