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High court backs law against illegal workers in Arizona
Arizona can punish employers who are found guilty of knowingly hiring undocumented workers, the U.S. Supreme Court ruled Thursday.
In a 5-3 decision, the justices rejected arguments by the business community, Hispanic rights organizations and the Obama administration that the 2007 law infringes on the exclusive right of the federal government to regulate immigration.
"We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted,'' Chief Justice John Roberts wrote for the majority.
The law, formally known as the Legal Arizona Worker Act, allows a state judge to suspend all business licenses of any firm found guilty of knowingly hiring illegal immigrants. A second offense within three years puts the company out of business.
Foes of the law said that runs afoul of the federal Immigration Reform and Control Act approved by Congress in 1986. It precludes states and cities from imposing any civil or criminal penalties on companies for hiring undocumented workers.
But the same law does allow states to have their own "licensing or similar laws.'' It was that exception that Senate President Russell Pearce, R-Mesa, said he used to craft the Arizona statute.
Opponents pointed out that the Arizona law affects not only traditional business licenses but also includes articles of incorporation. In fact, Justice Stephen Breyer, in his dissent, said the whole concept of what licenses can be suspended is too broad.
"Why not a dog licensing law?'' he asked.
Roberts called that a "fanciful hypothetical,'' saying the Arizona law limits the scope of its penalties to those licenses issued "for the purpose of operating a business.''
Anyway, the chief justice said, Congress put that exception in the law for a reason.
"It makes little sense to preserve state authority to impose sanctions through licensing, but not allow states to revoke licenses when appropriate as one of those sanctions,'' he wrote.
Attorneys for business groups said even if the state can suspend or revoke a license, that cannot be done based on the findings of a state judge. Instead, they argued, a company first needed to be found guilty of knowingly hiring an undocumented worker by a federal judge or tribunal.
Roberts brushed that aside, saying, "such a requirement is found nowhere in the text'' of the federal law and its exception.
Breyer worried openly whether employers, faced with the possibility of being put out of business, will err on the side of not hiring anyone who even looks like he or she could be an illegal immigrant.
"Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens -- without counterbalancing protection against unlawful discrimination,'' he wrote.
But Roberts pointed out that license suspensions and terminations cannot be imposed for simply hiring an undocumented worker.
"Only far more egregious violations of the law trigger that consequence,'' Roberts wrote. "The Arizona law covers only knowing or intentional violations,'' with permanent loss of the ability to do business only after a second conviction.
"An employer acting in good faith need have no fear of the sanctions,'' Roberts wrote. And he said there are various state and federal laws which prohibit discrimination.
Separately, the justices upheld another requirement in the law which requires companies to use the federal E-Verify system to determine if newly hired employees are legally entitled to work in this country. Roberts said nothing in that requirement conflicts with federal laws.
He also pointed out that the state law imposes no punishment on employers that do not make the checks. The only penalty is that those who do not use the system lose the ability to claim that they are in compliance with the law.
Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, said while he is disappointed in Thursday's ruling, he does not expect it to have much immediate effect on employers.
He said there have been few employers prosecuted under the law because county attorneys are enforcing it in a responsible way. And Hamer said the language used by Roberts in the majority opinion about having to show a knowing or intentional violations actually gives him some hope.
"For companies that are playing by the rules and using E-Verify in good faith, there's virtually no risk that they will be captured by the Arizona employer sanctions law,'' he said.
Jerry Cobb, spokesman for the Maricopa County Attorney's Office, said two firms have been successfully prosecuted: Waterworld water park and a Subway franchise operator, both in Phoenix. Both were forced to close their doors for several days.
Cobb said charges are currently pending against Scottsdale Art Factory and there are other investigations pending.
Julie Pace, an attorney who represented the chamber and other business groups, said the real effect of Thursday's ruling is that it gives the green light to the other 49 states to follow suit and enact similar laws.
Officials from the U.S. Department of Justice, which asked the high court to void the Arizona law, did not immediately return calls.
Pearce, in a prepared statement, called the ruling "a huge victory for American and the American worker.
"It is a defeat for the open-borders, profits-over-patriotism crowd,'' he said. "It is a death penalty for employers who continue to hire illegals and displace American workers.''
Gov. Jan Brewer, who was secretary of state when the law was approved, praised the ruling.
"Arizona's employer sanctions law allows the vast majority of businesses that want to play by the rules to comply with federal and state laws against hiring illegal aliens,'' her statement read. She said the law also allows the state to punish "those employers who take advantage of the federal government's immigration failures.''
The 2007 Arizona law was approved by the Republican Legislature and signed by then-Gov. Janet Napolitano, a Democrat, over the objections of business interests.
Napolitano, now the secretary of homeland security in the Obama administration, which tried to kill the law, said at the time she approved it that she did so "because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs.''
Justice Sonia Sotomayor also dissented, with her reasons somewhat different than those cited by Breyer.
The newest justice, Elena Kagan, did not take part in the decision because she had been the solicitor general in the Obama administration. But even if she had sided with the dissent, that would not have changed the outcome.