Supreme Court Considers Arizona Law Targeting Undocumented Immigrant Workers
December 13, 2010 By Raisa Camargo
WASHINGTON — The U.S. Supreme Court grappled last week over whether the state of Arizona has authority to implement standards and penalties on employers who knowingly hire undocumented workers.
The hour-long hearing on Dec. 8 put Arizona, once again, at the center of a conflict between federal and state government over immigration enforcement.
The eight participating justices heard arguments on Chamber of Commerce v. Whiting, a case highlighting the Legal Arizona Workers Act. The bill was signed into law in 2007 by former Arizona Gov. Janet Napolitano, who now serves as Secretary of Homeland Security.
The law requires all employers to participate in E-Verify, an employment verification database system. The law also allows the state to revoke business licenses from those who intentionally hire undocumented workers. Involvement in E-Verify is voluntary under federal law.
“The bottom line is that we believe if the (federal) government isn’t going to do the job, Arizona is going to do the job and we are faced with a crisis,” current Gov. Jan Brewer told reporters after the hearing. “In regards to today’s hearing, certainly we do issue licenses and if we giveth, we can taketh away and that’s what we’re hoping.”
E-verify is an internet-based system that allows employers to use information reported on an I-9 Form, Employment Eligibility Verification, to determine an individual’s authorization to work in the United States. It is limited to new hires.
Civil rights groups argued that the law fails to offer protections against discrimination.
Karen Tumlin, the managing attorney at the National Immigration Law Center and council for the petitioners against Arizona’s sanctions law, said the E-verify system contains scores of errors and it disproportionately affects people of color.
The system issues “tentative non-confirmation” checks to applicants whom employers suspect are undocumented before confirming their legal status. Tumlin said that in some cases tentative non-confirmations have turned out to be incorrect, which has the effect of discriminating against people who are legal residents.
Other arguments were made against state preemption because it conflicts with a 1986 federal ruling prohibiting states from taking action against employers unless they were convicted of violating federal law. A clause in the Immigration Reform and Control Act, however, allows state governments latitude to take civil action when licensing businesses.
“The bottom line here is this is a statute that was enacted 21 years ago and structured the relationships between the federal government and the state government,” said Carter G. Phillips, the Washington attorney who represented the U.S. Chamber of Commerce. “Maricopa County is going to send off people to investigate and try to adjudicate these claims.”
He added that the balance Congress struck between the protections on both sides will be “completely dashed.”
The Justices are expected to reach a decision on the case early next year. Justice Elena Kagan recused herself from participating.
If the Supreme Court decides to uphold the state law, it would give states broader authority to set and enforce immigration policy.
Arizona Governor Jan Brewer believes that cracking down on undocumented workers will help improve her state’s sagging economy.
Brewer told Hispanic Link that SB1070, which gives the state immigration enforcement powers, hasn’t seriously damaged Arizona’s economy. Although there were some conventions cancelled, the hotel and tourism industry is moving forward, she said, adding the undocumented workforce has cost the state a lot of money.
Raisa Camargo is a reporter with Hispanic Link News Service.
Image: Wiki Commons.