- The Washington Times - Thursday, May 26, 2011

In a weighty case with far-reaching implications, the Supreme Court on Thursday upheld an Arizona law that requires all businesses to check to make sure new workers are in the country legally — and in the process signaled the states can have a greater say on immigration issues.

The 5-3 ruling did not directly address a second Arizona law that granted police broader powers to check immigrants’ status and set off nationwide protests by immigrant rights groups last year. But the decision does touch on many of the same issues of federal versus state authority, and seemed to show an openness by a majority of justices to action by the states.

Kris W. Kobach, a lawyer who helped write both laws and who last year won election to be Kansas’ secretary of state, said the decision signals the court majority could look favorably on the far more contentious 2010 Arizona law, known as SB 1070.

“The Supreme Court today said that as long as the state relies upon federal definitions of immigration status and relies upon federal determinations of any particular alien’s status, then that state is not in conflict with federal law. That is exactly what SB 1070 does,” he said.

He said the court also signaled it will set a high threshold before ruling that a state law conflicts with federal law.

At issue in Thursday’s ruling was whether Arizona can require businesses to use E-Verify, a voluntary program the federal government offers businesses to check whether their job applicants are work-eligible. The Obama administration and the U.S. Chamber of Commerce said the requirements went too far.

But Chief Justice John G. Roberts, writing the majority opinion, said that while federal law makes the checks voluntary, it does not specifically bar states from making them mandatory. Because Arizona’s law doesn’t impose criminal penalties and deals only with businesses’ licenses, it doesn’t impinge on federal authority.

“Arizona’s procedures simply implement the sanctions that Congress expressly allowed the states to pursue through licensing laws,” the chief justice wrote. “Given that Congress specifically preserved such authority for the states, it stands to reason that Congress did not intend to prevent the states from using appropriate tools to exercise that authority.”

E-Verify has been controversial since Congress first authorized it in 1996, when it was known as the “Basic Pilot Program.” The voluntary program allowed businesses to register with the government and gain access to a database that instantly checks job applicants’ Social Security numbers to make sure they are eligible to work.
In the beginning, immigrants’ rights advocates complained that it rejected too many eligible workers, but U.S. Citizenship and Immigration Services, which runs E-Verify, has made improvements and brought down the error rate significantly.

In 2007, Arizona made E-Verify mandatory for all businesses — a move Gov. Janet Napolitano, a Democrat, signed into law. Three other states have since made it mandatory, and more than a half-dozen have required the use of E-Verify for state employees or contractors.

Business groups such as the U.S. Chamber of Commerce have joined the challenge to Arizona’s law, saying they fear being overwhelmed by a patchwork of state-by-state regulations.

With broad immigration legislation stalled at the national level, and with states struggling with rising illegal-immigrant populations within their borders, state officials and legislatures are increasingly taking steps on their own and running into federal opposition as they do.

Last year, Arizona adopted SB 1070, which gave police expanded powers to check immigrants’ legal status. The Obama administration has challenged that law in court, and both a federal district and federal appeals court have blocked key parts from taking effect, saying it infringes on federal powers.

Arizona Gov. Jan Brewer, a Republican, who succeeded Ms. Napolitano in 2009, has said she will ask the Supreme Court to take the case on appeal.

The Homeland Security Department, which oversees U.S. Citizenship and Immigration Services and is now run by Ms. Napolitano, a Democrat, declined to comment on Thursday’s ruling.

But Omar Jadwat, staff lawyer at the American Civil Liberties Union’s Immigrants’ Rights Project, said the decision was limited to a specific set of provisions in business-licensing law, and does not carry over to other states’ employer-sanctions laws, nor does it signal the court will uphold SB 1070.

“It’s important not to misread this decision as being something broader than that and to emphasize that this does not affect the analysis of laws like SB 1070 and other laws affecting immigration,” he said.

He also pointed to the history of both cases: The employer-sanctions law was upheld by federal courts at every step of the way, while the lower courts have blocked the police powers law.

The members of the high court’s conservative bloc, joined by moderate Justice Anthony M. Kennedy, joined Chief Justice Roberts in backing Arizona in the case.

Dissenting were Justices Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg. Justice Elena Kagan did not take part in the case because she was serving in the Obama administration when it challenged the law.
Justice Breyer, in his dissent, said allowing states to make rulings based on E-Verify increases the chances for errors, adding that the system itself is already too error-prone.

“Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever-stronger safeguards against the hiring of unauthorized aliens without counterbalancing protection against unlawful discrimination,” he argued.

In a separate dissent, Justice Sotomayor said the fact that Congress has had chances to make E-Verify a mandated program and has not done so means that the federal government meant for it to be voluntary and that Arizona is overstepping its bounds.

The ruling is bound to reignite the immigration debate on Capitol Hill.

House Judiciary Committee Chairman Lamar Smith, Texas Republican, said Thursday that he will introduce legislation to make E-Verify use mandatory across the country and praised the court for upholding Arizona’s law.
“Not only is this law constitutional, it is common sense,” he said. “American jobs should be preserved for Americans and legal workers.”

Obama administration officials have said they support making E-Verify mandatory for national use — but only as part of a total overhaul of the immigration system that would include legalization and programs to bring in foreign workers.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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