Dec. 8 (Bloomberg) -- U.S. Supreme Court justices signaled they are inclined to uphold an Arizona law that threatens companies with the revocation of their corporate charters if they hire illegal aliens.
Chief Justice John Roberts and Justice Antonin Scalia took the lead in aiming a barrage of questions at a lawyer challenging the measure in an hour-long hearing in Washington. Roberts pointed to a federal statute that carves out a role for states while Scalia focused on what he said was the U.S. government’s failure to enforce its immigration laws.
“What Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other states are in serious trouble, financially and for other reasons, because of unrestrained immigration,” Scalia said.
A ruling upholding the measure would spur enactment of similar laws elsewhere, advocates on both sides of the issue say. The case also may provide a hint as to the court’s approach to other state immigration measures, including a separate Arizona statute that gives local police a greater role in arresting illegal immigrants.
The U.S. Chamber of Commerce is challenging the law alongside civil rights groups and a labor union. President Barack Obama’s administration also says the law should be struck down.
A San Francisco-based federal appeals court upheld the measure, and opponents need the votes of five justices to overturn that ruling. The task is complicated by the absence of Justice Elena Kagan, who isn’t taking part because she played a role in the litigation as an Obama administration lawyer.
That means the challengers must win over at least two of the court’s five Republican appointed justices. A 4-4 split would leave the lower court ruling -- and the Arizona law -- intact without setting a nationwide precedent. The federal law bars the hiring of illegal aliens and subjects employers to fines for violations.
The challengers say the Arizona provision runs afoul of a 1986 federal statute that bars states and cities from penalizing employers for hiring illegal aliens except through “licensing and similar laws.”
Roberts said that provision created ample room for Arizona to take away a company’s license to do business within the state. “Congress swept pretty broadly,” he said. “It said not just ‘licensing laws’ but ‘licensing and similar laws.’”
The Chamber of Commerce’s lawyer, Carter Phillips, argued that Congress has enacted a “comprehensive scheme” and wanted to have “uniform” rules governing the hiring of immigrants across the country. He said states could strip a company’s license only after an employer had been found by federal officials to have violated the immigration laws.
Alito and Kennedy
Justice Samuel Alito, another Republican appointee, questioned the logic behind that argument. He said some states would likely impose stricter punishment than others, undermining the uniformity that Phillips said was important.
“It’s not going to be the same,” Alito said.
Justice Anthony Kennedy, a Republican appointee who is often a swing vote, directed questions at both sides. He suggested to Phillips that the Arizona sanction is a licensing law, permitted under federal statute.
At the same time, he voiced puzzlement that Congress would intentionally let states strip a company of its right to do business but not impose a lesser sanction, such as a fine. “Why would Congress want to do that?” Kennedy asked.
Justice Ruth Bader Ginsburg made a similar point, saying it would be an “anomaly” if states could only impose a more severe punishment.
Arizona Solicitor General Mary R. O’Grady told the justices that states “traditionally have the authority to regulate the conduct of employment” within their borders. Those watching her argument in the packed courtroom included Arizona’s governor, Republican Jan Brewer.
So far, Arizona officials have filed only three enforcement actions against employers, all in Maricopa County, which includes Phoenix and Scottsdale.
The justices spent far less time focusing on a second question in the case: whether Arizona can require employers to participate in E-Verify, a system designed to allow confirmation of worker eligibility for employment through federal databases. The system is voluntary under U.S. law.
Kennedy suggested he was on Phillips’s side on that question. “That’s almost a classic example of a state doing something that is inconsistent with a federal requirement,” he said.
The fifth Republican appointee, Justice Clarence Thomas, asked no questions, in keeping with his usual practice.
The case, which the court will resolve by early July, is Chamber of Commerce v. Whiting, 09-115.
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