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Supreme Court split on Ariz. immigrant hiring law

Kagan’s abstaining may be factor

- The Washington Times - Wednesday, December 8, 2010

With Justice Elena Kagan taking no part in the case, it appears unlikely the Supreme Court will strike down an Arizona law imposing severe punishment on businesses that hire illegal immigrants.

In one of the year's hot-button cases, the conservative wing, led by Justice Antonin Scalia, generally supported the law, while the liberal wing, led by Justice Stephen G. Breyer, seemed opposed during arguments Wednesday.

"Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration," Justice Scalia said. "And therefore, they had to take this very massive — I agree this step is massive and one wouldn't have expected it to occur under this statute — but expectations change when the federal government has simply not enforced the immigration restrictions."

But Justice Breyer worried that the Arizona law would have a discriminatory effect as employers would simply chose not to hire people of Hispanic descent for fear of choosing, even inadvertently, an illegal immigrant.

"So Arizona comes along and says: 'I'll tell you what, if you discriminate, you know what happens to you, nothing?'" Justice Breyer said. "But if you hire an illegal immigrant, your business is dead."

In the case, known as Chamber of Commerce of the United States v. Whiting, a group of seemingly strange bedfellows — business owners, unions and civil libertarians — challenged a state law requiring employers to access a federal database to ensure that job applicants are eligible to work in the U.S. The law also imposes sanctions that could force employers out of business.

At issue is whether federal law "pre-empts" the Arizona law through the Constitution's Supremacy Clause, which says state law can't contradict federal law. Specifically, those opposing the Arizona law say it contradicts Congress' intent that the use of the E-Verify database is strictly voluntary, not mandatory.

Critics have argued that the law goes too far in its use of sanctions, as only the federal government can impose such penalties. The state argues that while Congress made participation in E-Verify voluntary, it did not preclude states from passing laws making it mandatory. The state also has said that its sanctions are permissible because they are imposed through "licensing laws," which does not conflict with federal law.

The Obama administration opposes the Arizona law, leading Justice Kagan to recuse herself because her former job as the administration's top appellate lawyer, solicitor general, resulted in her having involvement with the case. Justice Kagan's recusals have loomed large for the court this term as she has stepped aside in about half of the roughly 50 cases the court will hear.

Her recusal Wednesday may all but ensure the Arizona law survives because the vote of five justices would be required to strike down a law upheld by the U.S. Ninth Circuit Court of Appeals. With only eight justices considering the case, the four reliably conservative justices appear poised to side with Arizona.

Along with Justice Scalia, apparent support for the law came from Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Justice Clarence Thomas, who has not spoken during arguments in years, said nothing Wednesday, but he typically sides with the other conservative justices.

"Maybe you will persuade me otherwise, but I have no doubt that insofar as this law limits the authority to do business within the state, it is a licensing law," Justice Scalia told a lawyer representing those who oppose the law.

The court's frequent swing vote, Justice Anthony M. Kennedy, may be inclined to side with the court's liberal wing.

"You are taking the mechanism that Congress said will be a pilot program that is optional and you are making it mandatory," Justice Kennedy said to the lawyer representing Arizona. "It seems to me that's almost a classic example of a state doing something that is inconsistent with a federal requirement."

The members of the court's liberal wing — Justices Breyer, Ruth Bader Ginsburg and Sonia M. Sotomayor — seemed to express various degrees of skepticism about the Arizona law.

If the liberal justices vote as a block and Justice Kennedy sides with the liberal justices, the court splits 4-4, and the law will be upheld. A tie at the Supreme Court means the ruling from the next-highest court stands.

A decision in the case is much anticipated as state legislatures nationwide have passed hundreds of immigration laws during the past five years, according to the National Conference of State Legislatures.

The issue of states passing immigration laws became even more pronounced this year with the passage of an even more controversial Arizona law giving state law enforcement officers broad authority in enforcing immigration law. The federal government has filed a lawsuit against Arizona, saying the new law violates the Supremacy Clause.

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