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
Should the Supreme Court permit live audio and video coverage?
To follow is an excerpt from the CQ Researcher issue "Cameras in the Courtroom" by Kenneth Jost on January 14, 2011
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Retired justice Sandra Day O'Connor, the first woman to serve on the Supreme Court, was back in the courtroom last fall and liked what she saw. “It was absolutely incredible,” O'Connor recalled during a Dec. 13 program at the John F. Kennedy Library in Boston. Three women on the bench: one on the far right, one toward the middle, one on the far left. “I just think that the image that Americans overall have of the court has to change a little bit when they look up there and see what I saw,” O'Connor said.
Moderator Linda Greenhouse quickly noted that the sight was not as accessible as O'Connor suggested. “Not that many people actually get the chance to see” the Supreme Court in action, said Greenhouse, The New York Times' former correspondent at the court and now journalist in residence at Yale Law School in New Haven, Conn. [Footnote 11]
In fact, except for the working press, members of the Supreme Court bar and invited guests, all visitors to the Supreme Court face a time-consuming process in trying to see the justices in action. Would-be spectators typically line up hours in advance to claim one of the 250 seats available for the general public. At least 50 spectators are allowed to stay for an entire, hour-long argument, but others are ushered in for only a few minutes.
Camera-access advocates have been making their case over the past decade in large part by emphasizing the public's limited access to the courtroom. “There is no reason why in the 21st century the American people should not be able to watch their democracy in action, and the Supreme Court should not be an exception,” says Nan Aron, president of the liberal Alliance for Justice. The alliance was part of a 46-group coalition led by the American Civil Liberties Union (ACLU) that urged the lame-duck Congress last year to pass legislation either requiring or calling on the Supreme Court to permit live TV coverage.
The pressure from Congress and outside groups has helped prompt the court to make audio recordings of arguments available sooner and more widely than in the past. But the justices have not allowed camera coverage of proceedings, whether live or delayed.
The three justices vocally opposed to cameras — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — warn that TV coverage could hurt collegiality on the court and endanger the justices' personal security. Scalia has also complained that TV coverage would reduce the Supreme Court to “entertainment.”
Critics and skeptics of TV coverage of the court echo those concerns. “I do not see a good case for cameras in the courtroom and think it will inflict some real costs,” says Edward Whelan, president of the Ethics and Public Policy Center, a conservative think tank in Washington, and a former Scalia law clerk. Jonathan Adler, a conservative law professor at Case Western Reserve University in Cleveland, agrees, though with some ambivalence. “I understand what they're afraid of,” says Adler. “Their fears may be completely overstated, but I understand them.”
The media organizations and other advocacy groups in favor of camera access discount the fears that cameras would affect either the justices or the lawyers. In particular, they say fears of grandstanding by lawyers will not materialize. “Oral advocates are going to get up there and do their best, and so are the justices,” says RTDNA counsel Kirby.
C-SPAN counsel Collins says the cable network's experience with coverage of other appellate courts shows that lawyers do not play to the cameras, as opponents fear. “They don't, and it's very simple why they don't,” says Collins. “The only person who's going to determine the rights of their client are the judges. So they play to the judges. They do it respectfully and within the rule of law.”
Whelan disagrees. “No one behaves exactly the same way when a camera is on him,” he says. “It adds an additional element. It is not at all clear that it's a desirable element.”
C-SPAN, supported by other media organizations, stepped up its requests for TV access to the court in advance of the two cases that resolved the Bush v. Gore presidential election contest in 2000. By letter, the late Chief Justice William H. Rehnquist responded that “a majority” of the justices remained opposed to TV cameras. But the court did take the then-unprecedented step of releasing audio tapes of arguments in the two cases immediately after the conclusion of each session.
The court followed that procedure in a dozen or so cases over the next decade. The new practice, adopted at the start of the current term in October, makes the recordings of all arguments available, but only at the end of the week. “They wanted to get out of the business of making a case-by-case decision,” Collins says.
Prospects for congressional legislation may be dim after the defeat of Pennsylvania Sen. Arlen Specter, the Republican-turned-Democrat who sponsored legislation calling for camera coverage and closely questioned Supreme Court nominees on the issue during confirmation hearings. In any event, it is unclear whether Congress has the power to require the court to let cameras in.
Collins says the court itself will have to change before cameras are allowed. “I think the court will be televised eventually, but it will be a result of generational change,” he says. “There have to be enough justices who've had broad experience with video in their lives to be comfortable with it for them to open up.”
The Issues:
* Has television coverage of state courts been a success?
* Should federal courts permit television coverage of trials, including criminal cases?
* Should the Supreme Court permit live audio and video coverage?
For more information on the CQ Researcher report on "Cameras in the Courtroom" [subscription required] or purchase the PDF.
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Footnotes
[11] An excerpt from the Dec. 13, 2010, program, “A Conversation With Justices Sandra Day O'Connor and David Souter,” was posted on You Tube: www.youtube.com/watch?v=e4D9RTCOD9E.
