A case with potentially far-reaching ramifications for employers came closer to a decision on Dec. 8 when the nation’s top court heard oral arguments.

Hearing Hints at Judges’ Leanings On Arizona Immigration Case
Photo: AP
Customs agents patrol the border at Nogales, Arizona.

At issue in the case--Chamber of Commerce v. Whiting--is whether an Arizona law that imposes sanctions on employers that knowingly hire illegal immigrants can stand, or whether federal immigration law should preempt the statute.

Other states that would like to enact similar legislation or have laws already in place are watching the case closely.

The case is important to construction employers. According to some researchers, one in four jobsite craft workers is Hispanic and a substantial portion of them may be illegal immigrants.

An unlikely coalition of immigrants’ rights advocates, unions and business groups led by the U.S. Chamber of Commerce have challenged the law, which they say should be preempted by the federal Immigration Reform and Control Act (IRCA) of 1986.

Employers particularly oppose the provision in the state law--called the “death penalty” by some--that revokes the license of firms that hire illegal immigrants.

Although it is hard to predict how the justices will rule based on their questions, the court appeared divided, with the conservative wing, led by Antonin Scalia, appearing to be sympathetic to Arizona’s view, while the more liberal justices challenged some of the state’s arguments.

Because Justice Elena Kagan recused herself from the case, a split 4-4 decision is a possibility, and would essentially force the court to take up another similar case to resolve the issues raised by this case.

In his arguments, Carter G. Phillips, who represented the Chamber of Commerce, said that Congress carefully developed IRCA to both combat the hiring of illegal immigrants while preventing discrimination. The Arizona law, he said, upends the careful balance, offering no protections against discrimination against Hispanic or other workers.

Mary O’Grady, arguing for Arizona, said that the state law is essentially a licensing law, and as such, falls squarely within a provision in IRCA that preserves licensing authority for states and should therefore not be preempted.

Hints of how the voting would go could be gleaned from the justices questions and comments.

Justice Scalia said, “Arizona says that the scheme in place has not been enforced. Expectations change when the government simply doesn’t enforce.”

Chief Justice John Roberts queried Phillips on what he thought the lawmakers meant in 1986 when they included the state licensing provision.

Just what the architects of the IRCA had in mind when they included that provision was the subject of much debate.

Phillips suggested that lawmakers intended the provision to apply only in narrow cases, such as when someone is convicted of a felony.

Justice Sonia Sotomayer seemed to agree, suggesting that the Arizona law seemed to create an entirely new scheme for adjudicating cases against employers that goes beyond the licensing provision of IRCA.

Justice Stephen Breyer wondered what prevented employers from discriminating against Hispanic and other ethnic minorities to avoid possible sanctions.

O’Grady replied that law’s architects took careful measures to ensure that discrimination does not occur. For example, employers are required to use the federal E-Verify system to ensure that employees are legal.

But Justice Ruth Bader Ginsburg and Anthony Kennedy questioned whether a state could mandate the use of a voluntary federal resource.

On the steps outside court after the oral arguments, Terry Goddard, Arizona’s attorney general, noted that the Arizona law has resulted in only three successful prosecutions. “It’s a very tough law,” he said.

Phillips said that if the court issues a split decision, it will likely take on a similar case involving an Oklahoma immigration law.