By Kenneth Jost
Supreme Court Editor, CQ Press
States are free to use licensing laws to penalize employers or even put them out of business for hiring illegal aliens, the Supreme Court ruled on Thursday.
The 5-3 decision upholds an Arizona law enacted in 2007 out of frustration with the federal government’s lagging enforcement record under the employer- sanctions provision enacted as part of a 1986 immigration law. The Arizona law requires the state to revoke the license of any business found guilty a second time of intentionally hiring an unauthorized immigrant worker.
At least eight other states have passed laws with provisions that go beyond the terms of the federal law, known as the Immigration Reform and Control Act or IRCA.
The case is separate from a challenge pending in lower federal courts to an Arizona law enacted in April 2010 that makes it a state crime to be in the country illegally. A federal judge in Arizona has blocked the law from going into effect, and the Ninth U.S. Circuit Court of Appeals upheld the injunction pending further proceedings.
The Arizona employer-sanctions law had been challenged by business groups led by the U.S. Chamber of Commerce, by civil rights and immigrant-rights organizations and by the Obama administration. In legal terms, they argued that the federal statute preempted Arizona’s law. In effect, they said, Arizona could not go beyond what the federal law provides.
In practical terms, business groups argued that the Arizona law would burden employers by subjecting them to overlapping, potentially conflicting federal and state enforcement schemes. The civil rights groups and the Obama administration warned that the stiff penalties imposed by the Arizona law would likely lead to discrimination against workers who look or sound “foreign.”
Justices in the majority in Thursday’s decision, Chamber of Commerce v. Whiting, 09-115, gave little weight to those policy concerns. Instead, the court held that the federal law expressly permits states to use licensing laws to penalize employers for hiring undocumented workers and that Arizona’s statute does not conflict with the federal scheme.
“Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States,” Chief Justice John G. Roberts Jr. wrote, “and therefore is not expressly preempted.”
The ruling pitted the court’s conservative majority against its liberal bloc. Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. joined all of Roberts’ opinion; Justice Clarence Thomas joined most of it. Liberal justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissented. Justice Elena Kagan was recused because she was solicitor general during earlier proceedings.
The case turned on a provision in IRCA that bars “any State or local law imposing civil or criminal sanctions” against employers for hiring unauthorized aliens “other than through licensing and similar laws.” Summarizing the ruling from the bench, Roberts underscored the exception for licensing laws as an “important” phrase. He went on to conclude that the exception authorizes a state to go so far as to revoke a company’s corporate charter or license to operate within the state.
The ruling also upheld a second provision that requires Arizona employers to use the federal government’s pilot Internet-based system known as “E-verify” to verify the work status of job applicants before they are hired. In setting up the program in 1996, Congress made participation voluntary. The business and civil rights groups – but not the federal government – say the program has too many bugs for employers to be required to use it to avoid liability for hiring an undocumented worker.
In his dissent, Breyer argued that Congress did not intend the broad reading that the majority gave to the exemption for state licensing laws. The ruling, he said, risked “undermining Congress’s efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.” Ginsburg joined his opinion.
Separately, Sotomayor argued that the federal law should be read to require a federal adjudication of an employer’s liability for hiring illegal aliens before any state penalties could kick in. In a footnote, Roberts chided the dissenters for failing to agree on a single rationale for striking down the Arizona law.
The Chamber of Commerce said it was "disappointed" with Thursday’s ruling, but said the decision does not give state and local governments "a blank check to pass any and every immigration law." Separately, the American Civil Liberties Union also voiced disappointment, but emphasized that the ruling did not directly bear on the other Arizona law -- known as SB 1070 -- being challenged in lower federal courts.
Arizona's employer-sanctions measure was signed into law by the state's Democratic governor, Janet Napolitano, who is now the Obama administration's secretary for Homeland Security, and vigorously defended by her Republican successor, Jan Brewer. In signing the law in 2007, Napolitano said the state had to act because Congress was "incapable of coping with the comprehensive immigration reforms” the country needed.
For background, see Alan Greenblatt, “Immigration Debate: Update,” [subscription required] CQ Researcher, Dec. 10, 2010; Kenneth Jost, “States and Federalism,” [subscription required] CQ Researcher, Oct. 15, 2010.
Justices Uphold Arizona Employer-Sanctions Law
New Report: America’s Border Fence
By Reed Karaim, September 19, 2008
Will it stem the flow of illegal immigrants?
America is rushing to build 670 miles of fencing along the U.S.-Mexican border by the end of the year. The fence – or wall, as critics along the border call it – is to include 370 miles of fencing intended to stop illegal immigrants on foot and 300 miles of vehicle barriers. To speed construction, the Bush administration is using unprecedented authority granted by Congress to waive environmental-, historic- and cultural-protection laws. No one claims that building physical barriers along roughly a third of America’s 2,000-mile Southern border will stem illegal immigration by itself, but supporters believe it is an essential first step in “securing the border,” providing a critical line of defense against illegal migration, drug smugglers and even terrorists. Opponents see it as a multi-billion-dollar waste that will only shift illegal immigrants toward more dangerous and difficult routes into the country, while doing environmental, cultural and economic damage.
* Can a border fence stem the flow of illegal immigrants?
* Would blocking all illegal immigrants hurt or benefit the U.S. economy?
* Does the fence harm U.S relations with Mexico and other countries?
To read the Overview of this week's report, click here.
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Overview of the New Report on America's Border Fence
In the arid landscape near Naco, Ariz., America’s new border fence already looks timeworn. A rusted brown the color of the distant Huachuca Mountains, spray-painted here and there with directions for maintenance crews, it snakes up and down rugged hills, disappearing into the distance. Besides its length, the most surprising thing about the fence is how unimpressive it appears. Our nation’s highly publicized first line of defense against illegal entry, now being built up and down the U.S.-Mexican border, looks in some places like something that might guard a construction site.
But to Border Patrol Agent Mike Scioli the fence marks a new day. “It’s a huge improvement,” he said recently, while showing a reporter the 14-foot-high fencing near Naco and the accompanying new roads, lights and other improvements. “It makes a huge difference in our ability to do our job. It changes the game.”
A few miles away, Bill Odle, a retired Marine whose house sits only a hundred yards or so from a stretch of fence erected last fall, views the fence quite differently. Odle has lived on the border since 1997 and is familiar with the evidence and even the sight of illegal immigrants stealing across. He regularly picks up the trash they leave behind and fixes livestock fences they’ve damaged. But it’s the border fence itself that raises his ire.
“It’s ugly. It doesn’t work. It costs too much,” Odle said, contemplating the steel-mesh barrier from his driveway. “It’s the perfect government project.”
The 670 miles of barriers the government plans to have in place along the U.S.-Mexican border by the end of the year does more than separate two nations: It sharply divides U.S. opinion about how we should approach illegal immigration and border security. That division becomes evident even in what the barricade is called. The government and supporters of the structure call it a “fence”; opponents disparagingly call it a “wall.”
A March 2008 Associated Press poll found Americans almost evenly split over the Secure Border Initiative, with 49 percent favoring the fence and 48 percent opposing it. But only 44 percent believe it will make a difference, while 55 percent do not.
That sentiment may partly reflect skepticism about the effectiveness of the effort. The “fence” is really a melange of barriers – built along several different stretches of the border – designed to hamper immigrants crossing illegally on foot and in vehicles. Some of the earliest portions are solid metal, consisting of corrugated steel once used in Vietnam-era aircraft landing mats. More recent sections are often made of wire mesh reinforced by concrete-filled poles or taller concrete-filled poles planted six inches apart. The height ranges from 12 to 18 feet. Vehicle barriers are lower and often resemble the crossed metal defenses erected by the Germans on the beaches of Normandy during World War II.
The longest continuous segment is 22.5 miles, according to Barry Morrissey, a Bureau of Customs and Border Protection (CBP) spokesman. The United States had constructed 338 miles of fencing as of Aug. 13, 2008. Homeland Security Secretary Michael Chertoff has said 670 miles will be in place by the end of 2008 – stretching across about one-third of the 1,950-mile-long U.S.-Mexican border. Roughly 370 miles of the fence will be designed to stop pedestrians and 300 miles of it to stop vehicular traffic. At least 28 miles of the fence will consist of high-tech sensors and cameras that will create a “virtual fence” in parts of the Arizona desert. However, Homeland Security recently sent that project back to the drawing board after the initial effort proved neither high-tech nor particularly effective.
But even as National Guard engineering units and private contractors work to meet Chertoff’s ambitious completion timetable, everything about the fencing – from design to location to the very notion itself – has proven controversial. Some prefer a double layer of more formidable fencing along nearly the entire length of the border. Others object to the wall on humanitarian grounds, believing it only forces illegal migrants to try crossing in more dangerous or remote desert areas or along the Pacific and Gulf of Mexico coasts. In both cases, they say, the death toll – which has been climbing for years – is likely to rise further.
“The fence doesn’t stop migration along the border, it simply displaces migration,” says Nestor Rodriguez, co-director of the Center for Immigration Research at the University of Houston.
The fence has attracted a widely disparate group of opponents. A coalition of civic leaders from 19 Texas border communities has sued to halt construction, claiming the federal government has improperly seized land for the fence. The Defenders of Wildlife and the Sierra Club are trying to halt the fence because of concern over what it will to do wildlife and environmentally sensitive habitat.
“This thing might not be very effective at stopping people, but it’s stopping wildlife in its tracks,” says Matt Clark, the Southwestern representative of Defenders of Wildlife.
While critics attack from all directions, supporters concentrate their defense of the fence along two fronts: its important role in halting illegal immigration and bolstering border security at a time of increased threats from terrorists and drug smugglers.
“It sends a message we are finally getting serious about our borders,” says Rosemary Jenks, director of governmental affairs for NumbersUSA, a group that advocates reducing both illegal and legal immigration.
Few think a fence alone will stem the tide of illegal immigrants across the Southern border, estimated by the Pew Hispanic Center at about 850,000 people annually between 2000 to 2006. But supporters believe properly placed fencing, backed by more surveillance equipment and an expanded Border Patrol (projected to reach 18,319 agents by the end of 2008) can largely halt the flow of illegal human traffic.
The history of the economic, demographic and cultural forces that finally led America to fence off more than a third of its border with Mexico is nearly as long and serpentine as the fence itself. In fact, the fence can be viewed as the physical manifestation of two powerful political currents: heightened U.S. attention to national security after the terrorist attacks of Sept. 11, 2001, and a rapidly integrating global economy that has left many Americans vulnerable to competition from foreign workers, both here and abroad.
The forerunner of the fence building now under way began in a far more limited fashion near San Diego in the 1990s. Congress adopted the idea as a national approach to the border when it passed the Secure Fence Act of 2006, which called for double-layer fencing along specific sections of the border. The law was subsequently modified to give Chertoff wide discretion in where and when to install fencing.
Work is under way in all four states along the border – California, Arizona, New Mexico and Texas. But two states will get most of the barrier: Texas will get 149 miles of pedestrian fencing by the end of 2008, according to the CBP, while Arizona will end up with 317 miles (130 miles of pedestrian fencing and 187 miles of vehicular barriers), covering 84 percent of the state’s 377-mile border with Mexico.
The CBP estimates that pedestrian fencing costs about $4 million to $5 million per mile, depending on the terrain, while vehicle fencing costs $2 million to $3 million. But the Government Accountability Office (GAO) says the final costs will be higher. Although the long-term price tag is difficult to estimate, the U.S. Army Corps of Engineers predicts the 25-year cost could range from $16.4 million to $70 million per mile, depending on the amount of damage done to the fence by illegal border crossers and the elements. Thus the quarter-century cost to taxpayers for 670 miles of fence could reach as high as $46.9 billion, or nearly seven times the size of the annual budget of the Environmental Protection Agency.
Moreover, if Chertoff’s goal is to be met, construction will have to average more than a mile a day for the rest of this year. Many supporters and opponents are skeptical, but government officials are confident they’ll meet the self-imposed deadline.
“We are on track to complete this project by the end of the year,” says Jason Ahern, CBP deputy commissioner, “and then we’ll assess where we need to consider putting additional miles of fence.”
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