High court upholds Arizona on verifying employees’ citizenship
In a weighty case with far-reaching implications, the Supreme Court on May 26 upheld an Arizona law that requires all businesses to check to make sure new workers are in the country legally — and in the process signaled the states can have a greater say on immigration issues.
The 5-3 ruling did not directly address a second Arizona law that granted police broader powers to check immigrants’ status and set off nationwide protests by pro-immigration groups last year. But the decision does touch on many of the same issues of federal versus state authority, and seemed to show an openness by a majority of justices to action by the states.
Kris W. Kobach, a lawyer who helped write both laws and who last year won election to be Kansas’ secretary of state, said the decision signals the court majority could look favorably on the far more contentious 2010 Arizona law, known as SB 1070.
“The Supreme Court today said that as long as the state relies upon federal definitions of immigration status and relies upon federal determinations of any particular alien’s status, then that state is not in conflict with federal law. That is exactly what SB 1070 does,” he said.
He said the court also signaled it will set a high threshold before ruling that a state law conflicts with federal law.
At issue in the ruling was whether Arizona can require businesses to use E-Verify, a voluntary program the federal government offers businesses to check whether their job applicants are work-eligible. The Obama administration and the U.S. Chamber of Commerce said the requirements went too far.
But Chief Justice John G. Roberts, writing the majority opinion, said that while federal law makes the checks voluntary, it does not specifically bar states from making them mandatory. Because Arizona’s law doesn’t impose criminal penalties and deals only with businesses’ licenses, it doesn’t impinge on federal authority.
“Arizona’s procedures simply implement the sanctions that Congress expressly allowed the states to pursue through licensing laws,” the chief justice wrote. “Given that Congress specifically preserved such authority for the states, it stands to reason that Congress did not intend to prevent the states from using appropriate tools to exercise that authority.”
E-Verify has been controversial since Congress first authorized it in 1996, when it was known as the “Basic Pilot Program.” The voluntary program allowed businesses to register with the government and gain access to a database that instantly checks job applicants’ Social Security numbers to make sure they are eligible to work.
In the beginning, pro-immigrant groups complained that it rejected too many eligible workers, but U.S. Citizenship and Immigration Services, which runs E-Verify, has made improvements and brought down the error rate significantly.
In 2007, Arizona made E-Verify mandatory for all businesses — a move Gov. Janet Napolitano, a Democrat, signed into law. Three other states have since made it mandatory, and more than a half-dozen have required the use of E-Verify for state employees or contractors.
Business groups such as the U.S. Chamber of Commerce have joined the challenge to Arizona’s law, saying they fear being overwhelmed by a patchwork of stateby-state regulations.
With broad immigration legislation stalled at the national level, and with states struggling with rising illegal-alien populations within their borders, state officials and legislatures are increasingly taking steps on their own — and running into federal opposition as they do.
Last year, Arizona adopted SB 1070, which gave police expanded powers to check immigrants’ legal status. The Obama administration has challenged that law in court, and both a federal district and federal appeals court have blocked key parts from taking effect, saying it infringes on federal powers.
Arizona Gov. Jan Brewer, a Republican, who succeeded Ms. Napolitano in 2009, has said she will ask the Supreme Court to take the case on appeal.
The Homeland Security Department, which oversees U.S. Citizenship and Immigration Services and is now run by Ms. Napolitano, a Democrat, declined to comment on the ruling.
But Omar Jadwat, staff lawyer at the American Civil Liberties Union’s Immigrants’ Rights Project, said the decision was limited to a specific set of provisions in business-licensing law, and does not carry over to other states’ employer-sanctions laws, nor does it signal the court will uphold SB 1070.
“It’s important not to misread this decision as being something broader than that and to emphasize that this does not affect the analysis of laws like SB 1070 and other laws affecting immigration,” he said.
He also pointed to the history of both cases: The employersanctions law was upheld by federal courts at every step of the way, while the lower courts have blocked the police powers law.
The members of the high court’s conservative bloc, joined by moderate Justice Anthony M. Kennedy, joined Chief Justice Roberts in backing Arizona in the case.
Dissenting were Justices Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg. Justice Elena Kagan did not take part in the case because she was serving in the Obama administration when it challenged the law.