The U.S. Supreme Court justices seemed to be skeptical of the federal government's view during the April 25 oral arguments in a closely watched case, Arizona v. United States.
Although the case is limited to an examination of four provisions of an Arizona law granting state police broad powers to detain and arrest suspected illegal aliens, the ramifications of a ruling in favor of the state are broad, says Ana Avendaño, assistant to the president and director of immigration and community action at the AFL-CIO. A ruling upholding the provisions would give employers greater ability to retaliate against workers who complain of not getting paid or other labor violations, she says. "This isn't theoretical or something that's happened [only] in the past," she says, adding that a favorable ruling for Arizona could mean that "other states are going to see this as a green light."
The case centers on the question of whether federal law preempts provisions of Arizona's S.B. 1070, which gives Arizona state police the authority to detain and check the legal status of anyone arrested whom they suspect of being an undocumented alien. The law makes it a crime for immigrants to be in Arizona without documentation showing that they are legal.
The law has never gone into effect. Arizona Gov. Jan Brewer, a Republican, signed the bill into law in April 2010, but the U.S. government filed suit in federal court before the law was enacted. Both a lower district court and the 9th U.S. Circuit Court of Appeals said that certain provisions of the law were preempted by federal immigration policy.
During oral arguments, Dept. of Justice Solicitor General Donald Verrilli Jr. argued that the state provisions could actually hinder federal efforts to enforce the nation's immigration laws by straining already limited resources.
But the justices appeared to be skeptical. Regarding the current federal regulatory scheme, an incredulous Justice Antonin Scalia asked, "The state has no power to close its borders to people who have no right to be there?" Justice Sonia Sotomayor told Verilli his argument wasn't "selling very well" with the justices.
Although the justices did not focus a lot of attention on the provisions that make it a crime for illegal aliens to seek work or for any alien to fail to obtain registration papers, those provisions will be difficult to uphold because "there clearly is a federal policy for that," Avendaño observes.
Although the case does not directly affect construction employers, a large segment of the construction workforce in Arizona is Hispanic. Mark Minter, executive director of the Arizona Builders Alliance, says his group did not take a position on S.B. 1070. But most larger, established construction employers in Arizona "tend to be people who comply with the law," including immigration laws, he says. However, he acknowledges that "the handyman level of work is another story."
A ruling is expected in June.