Eight Supreme Court Justices Hear Arizona Law on Hiring Immigrants

December 10, 2010 05:43

Janet Napolitano signed this Arizona bill into law and now as Obama’s open borders advocate fights it in the courts. This bill punishes businesses for hiring illegals and is separate from the more famous Arizona 1070 bill allowing local law enforcement to enforce immigration laws.

The Americano

This is about an Arizona immigration law, but not THE Arizona immigration law passed by Republican Governor Jan Brewer.

It is about another immigration law; one signed by Janet Napolitano when she was the governor of Arizona and would impose harsh penalties on businesses that hire illegal immigrants.

This law came before the Supreme Court for arguments Wednesday and it is chock-full of political ironies.

The first is that the law was signed by Napolitano, who now is Secretary of the Department of Homeland Security in President Barack Obama’s administration, which is adamantly opposed to Arizona being allowed to impose the bill’s regulations on businesses in the state.

Then there is the issue of Justice Elena Kagan, the newest member of the court. She had to disqualify herself because as a Solicitor General of the Obama administration she was the leading legal federal government opponent to the bill’s approval. She won’t be able to vote.

Thus in this case the Supreme Court will have to decide the case with the vote of only eight members.

In its story, The New York Times said just on the basis of “judicial arithmetic” this Arizona bill would likely be sustained by the Supreme Court.

According to the New York newspaper, a coalition of business and civil liberties groups, supported by the Obama administration, says the law should be struck down because it conflicts with federal policy.

But the questions by justices hearing the case Wednesday suggested that the challengers face an uphill battle in trying to capture the five votes they need to prevail. It is even harder when one considers that a four-four vote by the court would in effect affirm the Arizona law.

The debate, primarily between Justices Antonin Scalia and Stephen G. Breyer, concerned dueling conceptions of the role that federal and state governments should play in enforcing immigration laws.

Justice Scalia said the state law was a necessary response to federal inaction.

“Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration,” he said. “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.”

Justice Breyer, on the other hand, said the federal law had struck a careful balance between enforcing immigration laws and avoiding employment discrimination, a balance the Arizona law could undermine.

“How can you reconcile that intent to prevent discrimination against people because of their appearance or accent?” he asked. “How do you reconcile that with Arizona’s law?

“If you are a businessman, every incentive under that law is to call close questions against hiring this person,” he said. “Under the federal law every incentive is to look at it carefully.”

The 1986 law, the Immigration Reform and Control Act, said it overrode “any state or local law imposing civil or criminal sanctions.”

That would ordinarily be the end of the matter because the Constitution’s supremacy clause makes federal law the supreme law of the land. But the 1986 law made one exception. States could continue to regulate businesses, the law said, through “licensing and similar laws.”

Much of the argument dealt with the interpretation of that phrase.

The Americano / Agencies

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