- The Washington Times - Wednesday, December 8, 2010

Defeating one Arizona law cracking down on illegal aliens wouldn’t invalidate all of Arizona laws against illegals. Some are treating yesterday’s U.S. Supreme Court arguments in the case of Chamber of Commerce v. Whiting as stand-ins for the battle over Arizona’s recent law (S.B. 1070) letting local police detain illegals. To the contrary, that important law concerning local police powers might gain legal support no matter which side wins the U.S. Chamber case.

The Chamber is challenging a 2007 Arizona law that suspends or revokes business licenses for companies found to be knowingly engaging unauthorized immigrants. Both sides make reasonable arguments. A 1986 federal law already provides sanctions against employers of illegals, and its provisions explicitly “pre-empt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” on employers. Note the loophole within the parenthesis. Arizona argues that revoking a business license fits within the exception for “licensing and similar laws.” The federal district court agreed. So did the usually liberal 9th U.S. Circuit Court of Appeals, which rarely backs up state authority against the federal government.

The Chamber responds that Arizona pulled a fast one by “redefining” licensing. It says the state set up its own, broad enforcement system - despite being pre-empted from doing so - and then called it a “licensing” matter in order to exploit the loophole. The main issue in the suit is this narrow battle over the legal definition of licensing.

The fight over S.B. 1070, signed into law on April 23, is different. There, Arizona’s law merely allows local police to further detain or penalize those arrested for other violations if they also cannot prove the legal right to be in the country. This neither violates nor is expressly superseded by federal law. Instead, the Obama administration claims federal law implies it pre-empts Arizona’s enforcement efforts. It further argues that executive-branch decisions not to enforce federal law can pre-empt Arizona’s attempts to enforce the same laws even when Congress didn’t intend to pre-empt the states. In sum, the administration wants far more infringement on state power than is at issue in the Chamber case.

That’s why the Supreme Court could help Arizona’s defense of S.B. 1070 either way. If the justices rule for Arizona in the Chamber case, where the pre-emption is explicit, the administration’s argument against S.B. 1070 falls apart. If the state wins a case against “express” pre-emption, it certainly will win when the pre-emption is only implied.

On the other hand, if Arizona loses the Chamber case only by virtue of the Supreme Court emphasizing how explicit or express the pre-emption is, then the vague theory of implied, executive pre-emption in the S.B. 1070 case will look weak by comparison. Under either outcome, the Grand Canyon State can win the argument that states retain certain authority unless Congress expressly says otherwise. Arizona is right to insist that the Constitution is meant to limit federal power.