At 11 a.m. on Wednesday, the Supreme Court will hold a one-hour hearing on the authority of state governments to regulate the activities of non-citizens living illegally within their borders. While this case from Arizona is important in its own right, testing an alien worker law, it could be even more significant as a prelude to a coming test case over an even more aggressive law, also enacted in Arizona. The case of U.S. Chamber of Commerce v. Whiting, et al. (09-115) will be argued for the Chamber by Carter G. Phillips of Sidley Austin in Washington, sharing time with Acting U.S. Solicitor General Neal K. Katyal, speaking for the federal government as an amicus. Representing Arizona will be the state Solicitor General, Mary R. O'Grady of Phoenix. (The title of the case has changed since it was granted as U.S. Chamber of Commerce v. Candelaria, et al.) The case will be heard by an eight-member Court; Justice Elena Kagan has recused from the case, presumably because of her former role as U.S. Solicitor General. Background Frustrated at Congress's inability – or unwillingness – to reform immigration control law, and urged on by a rising political tide of nativist sentiment, state and local governments are adopting their own policies to deal with the nearly 11 million non-citizens who have entered the country illegally. Nowhere has that effort been more energetic than in Arizona, which shares a 389-mile-long border with Mexico. There are an estimated 285,000 non-citizens without valid immigration papers living in Arizona – the sixth largest such population among the states. A law passed by Arizona's legislature in 2007, to keep illegal aliens from getting jobs in the state, is the only one directly at issue in the case now before the Supreme Court, but the case is widely perceived to be only the first in a two-act constitutional drama before the Court over immigration policy and the Constitution. The outcome will be parsed for indications of how the Court could react when a new Arizona law, sweeping well beyond the jobs context, reaches the Justices, as is commonly expected. That new law is now under review in the Ninth Circuit Court, which held a televised hearing on it on Nov. 1; a decision there could come at any time. In seeking Supreme Court review of the 2007 worker law, the challengers made much of the spreading movement by state and local governments to move in on the perceived problem of illegal immigration. "State legislatures and municipal governments across the country," the petition said, "are seeking to regulate the employment of aliens…The result is a cacophony of state immigration laws, which are disrupting the congressional plan to comprehensively and uniformly regulate status verification and employment of immigrants." The federal government made the same argument in urging the Justices to step in. More broadly, the challengers have argued that this case tests whether states are going to be allowed to determine for themselves who is eligible to enter the country and get a job, by setting up their own regimes for determining an immigrant's legal or illegal status – a function, the challengers contend, that is clearly assigned to the federal government. The Arizona law under review is called the Legal Arizona Workers Act. It makes it illegal for employers in the state to intentionally hire an unauthorized alien, and it gives county attorneys authority to enforce this restriction, with escalating penalties for violations. The state does not have to accept as conclusive any federal determination of a worker's immigration status or citizenship, or any federal view on whether an employer intentionally hired an illegal alien. Those are issues left finally to state courts to decide. Among the ultimate penalties that the state may impose for violations are loss of any state license to do business in Arizona. In signing the measure into law, then-Gov. Janet Napolitano (now in the federal Cabinet as secretary of Homeland Security) conceded that immigration is a federal responsibility, but said that Arizona had to act because "Congress is incapable of coping with the comprehensive immigration reforms" the country needed. The Arizona approach, the challengers and the federal government have argued, sets up a direct conflict with federal law, which bars companies from hiring illegal aliens and establishes a comprehensive program for determining whether employers have obeyed that restriction. The federal program, too, is enforced with a series of escalating penalties. The federal program explicitly preempts any state or local law that imposes civil or criminal sanctions on those who hire or recruit or refer an unauthorized alien for a job. The law, however, makes an exception for state or local laws that involve "licensing or similar laws." A key issue for the Arizona law, then, is whether the state had the authority to enact it on the theory that it was – as the state insists it is – a licensing law. In fact, the Ninth Circuit Court, in upholding the law against a constitutional claim of preemption, treated it as a licensing measure that fit into the gap left by federal law. The Circuit Court also said that "the power to regulate the employment of unauthorized aliens remains within the states' historic police powers." Petition for Certiorari The U.S. Chamber of Commerce and other business groups as well as civil rights organizations in July 2009 asked the Supreme Court to strike down the Arizona law. "The growing discord between national immigration policy enacted by the federal government, and the shadow immigration policy being enacted by states and localities," the petition argued, "is an issue of great national importance. So too are the specific issues presented here; the decision below implicates the status verification process that every single employer is required to undertake for every single new hire." Thus, it contended, the issue reaches far beyond the Ninth Circuit Court's area, because of the passage of laws in "dozens of states." The appeal argued that "it is immensely burdensome, if not in some circumstances impossible, to comply with the different immigration regulations of all 50 states and even more individual localities." The burdens will fall not only on employers, it argued, but on employees, too. Raising an implicit issue of "racial profiling," the petition said: "Given the state of the economy and the numerous applicants for every job opportunity,…some employers, when confronted with this patchwork of conflicting state regulations and the severe sanctions for violations, will simply avoid hiring individuals who even appear to pose a risk of an immigration violation, based on their race, ethnicity, or national origin." Although there was no conflict in the federal appeals courts on these issues, the petition suggested that conflicts were developing among federal District Courts, and argued that nothing would be gained by allowing the controversy to continue without the Justices' intervention, since only the Supreme Court could resolve the issues finally. The petition raised three questions. The first was whether the Arizona law fits within the federal law, and its exemption of licensing laws dealing with employment of aliens. The second asked whether the law's specific requirement making mandatory employers' participation in a federal electronic employment database directly conflicts with federal law making that system voluntary. The third tested whether the Arizona law overall undermined the broad scheme that Congress had created to regulate alien employment, and thus was at least impliedly preempted. While the Court should proceed to decide those issues, the petition said, at a minimum the Justices should ask the federal government for its views "on the importance of the issue presented and the scope of Congress's preemptive intent." Arizona countered in September, arguing that there was no conflict among the federal Circuit Courts, and that any concerns about where immigration policy should go should be addressed to Congress, not to the Justices. The state argued that the petition was raising only two narrow questions of preemption, and neither one was worth the Court's time. Arizona's opposing brief argued that the state's impositions of penalties for knowingly hiring illegal aliens not authorized to work inside the U.S. was not preempted because it was enforced by a law that essentially is a licensing law of the kind Congress left states free to enact. And, it asserted, the mandatory participation in the electronic verification system will not intrude on the federal scheme, but in fact will help that program to work. In a plea to leave the broader issues to the political branches at least for the time being, Arizona said that "although no one disputes the general importance of immigration policy, that does not mean every dispute about a state or local measure regarding illegal immigrants merits this Court's review." With no conflict in the appeals courts yet, it added, "this Court's ordinary practice in such a situation is to wait and see whether a circuit conflict arises. Nothing the Solicitor General might say about this case can change that." The Court, however, took the challengers' advice, and on Nov. 2, 2009, asked the Solicitor General to weigh in on the case. (By the time the response was filed, on May 28, then-Solicitor General Kagan had been nominated to the Supreme Court, and she did not sign the response. However, she presumably had some role in discussing or preparing the response and, for that reason, has disqualified herself from taking part in the Court's consideration of the case.) Acting SG Neal K. Katyal, citing the wave of new laws in state and local governments dealing with employment of aliens, said the issues raised "are important and recurring." While the new employment laws and proposed new measures are different in their particular provisions, and while there is as yet no direct conflict among federal appeals courts, the government brief said the new measures "raise significant legal issues, already have generated confusion among both employers and employees, and will continue to do so absent guidance from either Congress or this Court." The government lawyer, however, urged the Court to consider only the challengers' first question, on the general question of whether the Arizona law is preempted. The employer sanctions provisions of Arizona's statute, Katyal argued, "disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country." The Court, Katyal added, should not take on the question of mandatory participation in the worker status verification program, because, although "the better reading of the law is that states and local may not impose such requirements," the system is continuing to evolve, and Congress is due to reconsider it in 2012. The third question, on implied preemption, was based on a Supreme Court precedent that did not involve preemption, so that question should not be reviewed, Katyal suggested. In a footnote, the government brief mentioned Arizona's then-newly enacted law that, among other tough new provisions, orders police to stop individuals who may be in the country illegally to check their legal status. But, the footnote added, that law is not before the Court in this case. (At that time, the federal government had not yet mounted its own challenge to the new statute, which it would later do, on preemption grounds rather than on the "racial profiling" challenge that civil rights groups were pressing.) Reacting to the Solicitor General, the state of Arizona again stressed the lack of a Circuit Court conflict and the need to leave immigration policy to the political realm, and the challengers argued that review of all three questions raised would give the Court a better view of the overlapping legal and factual issues surrounding all parts of the Arizona law. The Court took only part of the Solicitor General's advice: it agreed to review the case, but did not restrict its review, thus putting all three of the issues raised by the challengers up for consideration. Merits Briefs The challengers' merits brief, filed Sept. 1, opened with a lengthy description of the federal regime for monitoring the employment of non-citizens in the U.S. illegally – a strategic discussion because it sought to display the interacting parts of that program in a way that suggested that supposedly piecemeal state or local laws would disrupt its operation. It also made a strong pitch for the idea that Congress feared that employers would engage in "racial profiling" and thus exclude job candidates who only looked like aliens, so the lawmakers explicitly allowed bias on the basis of nationality or citizenship. The brief spent comparatively little space discussing the multiplicity of new state and local laws on the issue, essentially summarizing the objections made in the initial petition for review. It also did not seek to draw the Court's attention to Arizona's new and more sweeping law against illegal aliens. Turning to the substantive legal arguments, the challengers' brief belittled the notion that Arizona had simply enacted a "licensing" law, so it was protected by the exception Congress wrote into its scheme. If all that is needed to make a law regulating alien employment a licensing law is that denial or revocation could occur at some point in the process, then, the challengers said, "a state may regulate work-authorization status in whatever fashion it wishes – so long as, at the end of the day, something labeled a license may be affected." What Congress meant by the exemption clause, the challengers insisted, was only that "states could rely on federal determinations of compliance with federal immigration laws when issuing business licenses or permits to farm labor contractors." The exemption clause, it added, "permits states to tack on certain sanctions in the form of the suspension, revocation or refusal to reissue a license for persons who have been found to have violated the sanctions provisions" that Congress had imposed, not those that a state might seek to impose. The brief also defended the voluntary nature of the status verification scheme, done in that fashion, it argued, in order to make it an experimental program – one that has never been made permanent. The system, in fact, has not worked very well, the brief said; it is error-prone and is difficult for employers to apply. The brief spends only a few pages arguing the implied preemption issue, using those pages to buttress the argument that the verification system has to remain voluntary to conform to Congress's aim. The federal government's amicus merits brief supporting Arizona is, comparatively, a spare document, essentially making in fairly brief form the arguments that the state's alien worker control law is preempted both explicitly and impliedly by federal law. It also tracked the challengers' attack on the notion that the federal law's exemption for licensing laws is wide enough to shield the Arizona approach from preemption. Although the government earlier had suggested that the Court bypass review of the conflict between Arizona's law and the federal worker status verification system, the merits brief defended the idea that the system was intended to be voluntary, and argued that Congress did not hand states the option of doing what they wished to expand participation in it. Even if the Court were to conclude that the Arizona law on verification might be treated as a licensing law, the government brief contended, the state law still would have to fall because it clearly obstructs both Congress's goals and its purposes in providing for federal regulation of alien employment. The state of Arizona's merits brief, filed Oct. 21, had two principal thrusts, reinforcing each other. On the merits, it argued that the exemption-for-licensing-laws provision was a quite broad invitation to the states to devise their own methods for making the federal scheme work better at their level. On a federalism point, the brief contended that that provision "affirmed the states' police power to sanction those who employ unauthorized aliens within state borders," a power that the Supreme Court itself had acknowledged 20 years earlier in the case of DeCanas v. Bica (1976). The DeCanas decision, the state argued, made clear that Congress had the authority to set aside the state's police power laws only if Congress had taken "clear and manifest" steps to do that. Congress, it contended, did not do that in creating in 1996 the new federal scheme for regulating alien workers. Instead, the federal legislature "recognized the need to preserve state authority to address unauthorized employment." Absent express preemption language for state sanctions on employers, states retain the option of spelling out their own, the state brief asserted. The brief mounted a full defense of its interpretation of what a regulatory law must be in order to be classified as a licensing scheme. Merely because Arizona's laws focused on withdrawal of licenses as an enforcement mechanism, and does not provide for initial issuance of licenses to hire workers, does not make it any less a licensing approach, according to the state. Turning to the issue of whether Arizona's approach is preempted by implication, rather than by explicit language, the state's brief made another federalism argument: it would intrude on state sovereignty, it said, if Congress were understood to have barred a state from enforcing a state law against the holder of a state license unless the federal government had first completed its own enforcement action against that licensee. On the worker verification issue, the state's brief contended that it is entirely possible to obey the Arizona law's mandatory requirement and the federal law's provision of that system as an option. Moreover, according to the state, requiring employers to use the scheme designed by the federal government can only promote Congress's goal of ensuring that illegal aliens are not hired for jobs. The case, for all of its potential importance, has drawn only a modest list of amici briefs. The challengers, not surprisingly, get the support of other business organizations, labor organizations, civil rights advocates, and immigration law advocacy groups, and the state of Arizona naturally drew the support of 13 other states defending their prerogative to enact laws to deal with the rising influx of illegal aliens, and conservative advocacy groups favoring action by some authority in the face of inaction in Congress on new reform laws. Among the more fervent supporters of Arizona is one of its state senators, Russell Pearce, whose brief reminded the Court of his authorship of a continuing series of anti-alien measures including the broadest new law, so-called SB 1070. His amicus brief relied heavily upon an argument of state sovereignty, including the police powers argument put forth by the state. Analysis With the new wave of state and local laws attempting to deal with perceived immigration woes now starting to reach the Court, the arguments have focused and will focus on two issues: federal supremacy, and "racial profiling." The first Arizona case, now before the Court, is a clear-cut test of the first of those issues, but gets into the second only by rather indirect implication. The federal supremacy issue is clearly at the center of this particular dispute. The Court very likely will home in on the meaning of the licensing law exemption, to try to determine how expansive Congress meant that to be. If the Court were to read it narrowly, there seems little doubt that the Court would then conclude that state and local governments do not have Congress's permission to set up parallel schemes of regulating alien employment. Reading it narrowly, of course, would be a gesture toward state sovereignty, but in the field of immigration law, that concept may have less compelling force than in other contexts. It seems doubtful that the Court will be strongly moved by the argument that the states have to act because Congress has not reformed immigration law in a basic way. Whatever failures have occurred in recent efforts to pass comprehensive new reform legislation, there is an act of Congress that is on the books and is directly at issue now. The Court will be examining the outer reaches of that law, not the laws that Congress might have passed but has not. The absence of new federal legislation in the immigration field does not, by itself, accomplish a constitutional transfer of power to the state governments. Still, the case may well have broader implications, because of the way in which the Court ultimately spells out the scope of Congress's primacy in the field of regulating undocumented aliens. Unless the Court is strongly impressed by the state of Arizona's notion that its basic police powers are very much at risk if it loses this case, its ultimate decision very likely would be a quite broad reaffirmation of federal supremacy. That could send strong signals about other state or local laws, perhaps more sweeping than the one directly at issue this time – and thus say something about Arizona's new SB 1070 statute that is making its way toward the Court. On the second, fundamental issue – the risk of "racial profiling" in laws targeting undocumented aliens – the Court may find it unnecessary to address that fully in this initial encounter with the new wave of laws. Neither side has devoted a great deal of effort to debating whether state action of the kind at issue with the first Arizona law will lead to discrimination against those who look like aliens because of race or national origin. The challengers and the federal government only subtly address that question, suggesting that state and local laws that impose severe sanctions on employers will very likely lead them to make discriminatory hiring decisions. And Arizona insisted that it has taken steps to prevent that outcome of its regulation of aliens' employment. When, however, an anti-alien law moves beyond the employment context – as Arizona's sweeping new SB 1070 does, creating at least the possibility that mere appearances may lead to roundups of aliens even if they are not in the U.S. illegally and minority citizens who live here by right – then the potential racial implications will loom larger, and perhaps cannot be avoided. It should be noted that the federal government, in mounting its challenge to SB 1070, chose to do so on federal supremacy grounds, rather than a "racial profiling" argument. But that was a strategic choice, apparently driven by concern over the difficulty of proving "racial profiling" before SB 1070 actually becomes operative. (It has been blocked, in its key provisions, by a federal judge, pending the appeal.)
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