Last week the Supreme Court handed down the first of two highly anticipated immigration decisions, upholding an Arizona law that penalizes employers that hire undocumented workers.
In a 5-3 decision (Justice Kagan recused herself), the conservative majority held that the Immigration Reform and Control Act did not override state or local laws that impose civil or criminal sanctions on employers who hire unauthorized immigrants. Arizona law supplemented those penalties which much tougher ones and had been challenged by a myriad of groups as conflicting with federal immigration policy.
But Chief Justice Roberts disagreed, writing that the Immigration Reform and Control Act was broadly drafted to allow for such local modification, even though immigration control is squarely the province of the federal government. The decision also upholds the Arizona law’s mandate that all employers use the federal E-Verify system, despite the fact that the program has proven itself error-prone.
In a separate dissent, Justice Sotomayor addressed the largest procedural reality that will come from the decision — the possibility of all states and localities implementing their own distinct methods of enforcing and adjudicating employers who have employed unauthorized immigrants. Indeed, for employers who do business in multiple states, they now face a patchwork of immigration laws in the hiring process.
The decision has no impact on Arizona’s other controversial immigration law, SB 1070. While it would be easy to cut and paste the conservative majority’s outcome and predict a win for Arizona there as well, such a move would be premature at best. The laws deal with two entirely different aspects of immigration law — regulation of employment versus securing borders — and therefore require two entirely different analyses. If anything the decision shows a willingness to give states a lot of room in crafting responses to the challenges of illegal immigration and if the idea of 50 different laws on the matter is troublesome, the best answer is to get Congress to act instead.
photo courtesy of Barnaby via Flickr