High court up­holds Ari­zona on ver­i­fy­ing em­ploy­ees’ cit­i­zen­ship

The Washington Times Weekly - - Politics - BY STEPHEN DI­NAN

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.

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