Remember this one? This case deals with series of laws passed in Arizona in response to the failure of the federal government to enforce federal immigration laws. As summarized by the ACLU in September:
As part of a comprehensive overhaul of the immigration laws, Congress adopted a series of carefully calibrated measures, beginning in the mid-1980s, to enforce the federal bar on hiring unauthorized immigrant workers while preserving the civil rights of immigrant and minority communities. Unsatisfied with these efforts, Arizona adopted its own law imposing far more severe sanctions on employers who hire workers that Arizona believes are unauthorized to work, and requiring employers to participate in a federal employment verification program that the federal government chose not to make mandatory.
The question of the case is whether Arizona has the power to enact certain laws through the “licensing” provision of the federal law. Yesterday, the Supreme Court held oral arguments on the case (a transcript is here).
As Josh Blackman notes, Justice Scalia went straight to the licensing issue during the arguments and “remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration.” Because no one thought, when Congress enacted the federal law, that the federal government would fail to enforce the law, Arizona was left with only limited means of remedy.
JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.
The Justices proceeded to debate, and discuss, the meaning of the word “licensing” and whether this really was the only outlet for Arizona to act. Check out a good summary and a few choice clips from the transcript at Josh Blackman’s blog.
Justice Kennedy, consistently a swing vote on the court, remarked that the state’s position–requiring that the voluntary federal E Verify program be mandatory–seemed to be at odds with federal policy. “You’re making it mandatory. That is almost a classic example of doing something inconsistent with the federal requirement.”
Apropos: at least one of the Justices did not seemed concerned with the licensing issue. Justice Sotomayor seemed more concerned with the issue of federal preemption. (She also made a faux pas when she referred to “illegal aliens,” quickly correcting herself with “undocumented aliens,” as she had used in previous opinions.)
- Instant Analysis: Chamber of Commerce v. Whiting (joshblackman.com)
- On aliens, Arizona may win – for now (scotusblog.com)
- Sotomayor uses phrase “illegal alien,” and quickly changes it to “undocumented alien” during Arguments in Chamber of Commerce v. Whiting (joshblackman.com)
- Supreme Court to Rule on Ariz. Immigration Law (abcnews.go.com)