Stewart J Lawrence

Friday 27 May 2011

Arizona’s big win on immigration law

The supreme court decision upholding LAWA makes immigration reform next to impossible now for the Obama administration

The most recent appointee to the US supreme court, justice Sonia Sotomayor, was one of three dissenters in Thursday’s ruling for Arizona’s legislative right to sanction businesses employing undocumented immigrant workers

Guardian.co.uk

Thursday’s decision by the US supreme court to uphold a 2007 Arizona state law punishing businesses that hire illegal aliens has just thrown a huge monkey wrench into the nation’s immigration policy debate.

In fact, it’s a landmark decision that threatens to push the boundary line between federal and state authority for immigration closer to the federalist principle that states have a right to initiate their own laws – a huge blow to traditonalists, including Obama justice department lawyers, who insist that the US constitution gives the federal government a near-monopoly on the making and enforcing of the nation’s immigration laws.

The 2007 law in question, known as the Legal Arizona Workers Act, or LAWA, allows state authorities to suspend, and if necessary, to revoke the business licences of employers who knowingly hire illegal aliens. Even more striking, the law also mandates that employers adopt a workplace verification system known as “E-Verify” to screen prospective employees based on their legal status.

Two lower courts ruled in 2008 that LAWA was constitutional, despite furious challenges from a coalition of civil rights and immigration rights organisations, and business groups, which saw the sanctions law as likely to interfere with their ability to hire cheap foreign labour. The two lower courts, and now the US supreme court, cited a critical but little-known 1976 supreme court decision upholding a state employer sanctions law in California, as well as the 1986 Immigration Reform and Control Act, or IRCA, which established a new federal employer sanctions regime, but explicitly excluded issues relating to “business licencing” from the scope of the law.

US supreme court chief justice John Roberts cited that “savings clause” in his majority ruling that has upheld LAWA as constitutional. Three liberal justices, including Sonia Sotomayor disagreed, saying the 1986 law should “pre-empt” – meaning supercede – LAWA. Elena Kagan, the most recently appointed justice, citing a conflict of interest, had earlier recused herself from the court’s deliberations.

The Obama administration had hoped that the supreme court would strike Arizona’s 2007 law down, as part of a broader push toward eliminating the growing patchwork of state laws that have emerged in the wake of the failure of Congress to pass meaningful immigration reform legislation. Instead, the court’s decision is likely to do just the opposite: embolden conservatives – and even some progressive groups that favour local “sancutary” laws protecting illegal immigrants from being deported – to pass even more state-level laws.

The court’s decision will also have two immediate practical effects. First, it will protect employer sanctions laws like Arizona’s in about a dozen other states, including Alabama and Utah, from being overturned. Some of those laws are copycat Arizona laws, while others go only slightly beyond current federal law, but might still have been subject to challenge.

Second, the court’s ruling is also likely to raise fresh doubts about the Obama administration’s core constitutional argument against Arizona’s better-known, and more controversial “show me your papers” enforcement law, SB 1070, which a federal appeals court has agreed to place on hold. Arizona recently announced that it will appeal that decision to the supreme court.

Another implication of the court’s decision is its likely impact on the congressional debate on workplace enforcement. Conservatives have been pushing for E-Verify, a federal workplace enforcement system largely restricted to the public sector, to be implemented nationwide. Critics, including supporters of an “amnesty” programme, have argued that the system is still too technically flawed to be phased in, and requires further study.

The supreme court’s decision could also have important implications for Utah’s new “guest worker” law, which critics say also infringes on the federal government’s constitutional “primacy” in the area of immigration policy. Passed two months ago, the Utah guest worker law goes further than any state immigration law to date by allowing state authorities to negotiate directly with Mexico over the provision of visas to Mexican labourers seeking to work for US firms on temporary labour contracts.

To implement the law, Utah would need a formal waiver from the federal government, which, by law, currently provides all US visas to visiting foreign nationals. Alternatively, the Obama administration could try to have the Utah law overturned by the US supreme court, and despite the latest Arizona decision, it still could well win – given the far-reaching scope of the Utah law, and the lack of any precedent for state involvement in visa control.

But that’s exactly what critics of LAWA said – and instead, the court has moved squarely in the other direction.

http://www.guardian.co.uk/commentisfree/cifamerica/2011/may/27/us-supreme-court-usimmigration