Supreme Court's Whiting Ruling Gives Patriots A Memorial Day Present
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George W Bush was one of the worst enemies of patriotic immigration reform, but we need to give him credit for the appointments of Samuel Alito and John Roberts to the Supreme Court.

Both men ruled in the majority to uphold the Legal Arizona Workers Act in Chamber of Commerce vs. Whiting.  Roberts wrote the majority opinion—while Obama's "Wise Latina" Sonia Sotomayor wrote the dissent.

After activist judges made disappointing and even outrageous decisions in lower courts in the last year against SB 1070 and Hazleton PA's Illegal Immigration Relief Act, this is a huge victory and reason to celebrate.

Ironically enough, it was George Bush's failure to enforce our laws that prompted Arizona to enact the LAWA in the first place.

The 1986 Immigration Reform and Control Act [IRCA] was designed as a compromise—it was to give amnesty to a limited number of illegal immigrants, while at the same time outlawing the employment of illegal immigrants which would have presumably ended the problem of illegal immigration.

But under George W Bush's first term, sanctions against employers of illegal aliens virtually disappeared. As's Ed Rubenstein reported, from 1997 to 2004 the number of illegal aliens detained in workforce raids decreased from 17,554 to159 and the number of employers who were sanctioned plummeted from 865 to just three. (Then the government changed the basis of reporting, preventing further comparisons.)

Against this backdrop, then-State Rep. (now president of the Arizona State Senate) Russell Pearce pushed through the Legal Arizona Workers Act in 2007. LAWA required that all new hires in the state go through the E-Verify system to ensure that they are here legally, or else the hirer could lose its state business license. Knowing that an even tougher version would be made into a ballot initiative if she vetoed the measure, then-Arizona governor (now Obama Secretary of Homeland Security) Janet Napolitano reluctantly signed the bill.

While Arizona's SB 1070 is seen as the seminal state level immigration law, prior to its passage LAWA was already the strongest state level bill in the country. It is arguably an even more effective deterrent to illegal immigration. As we are constantly reminded, most illegal immigrants are here to work—not commit other crimes and go on welfare. Of course, this doesn't change the fact that they impose huge social and fiscal costs on American citizens. But it does mean that taking away the jobs magnet will tend to make illegal aliens self-deport.

And this worked in Arizona. Before the law was enacted, the media was filled with headlines like "Crackdown has illegal immigrants leaving Arizona." The Arizona Republic, December 19, 2007]

As expected, the Open Borders lobby tried to sabotage the democratic process through a frivolous lawsuit, filed by Chamber of Commerce along with Chicanos por la Causa, the National Immigration Law Center, the ACLU, and the Mexican American Legal Defense Fund. They had the support of the Obama administration, the American Immigration Lawyers Association, The Hispanic Bar Association, the ADL, Southern Poverty Law Center, LatinoJusticePRLDF, LULAC, La Raza, and dozens of other business and ethnic groups. (It's worth noting that Sotomayor, who wrote the dissent, was a member of La Raza and on the board of LatinoJusticePRLDF.)

Judicial Watch, Eagle Forum, Numbers USA, and FAIR's Immigration Reform Law Institute all filed briefs in favor of Arizona.

At issue was IRCA's provision that

"any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."

This should have been an open and shut case, in that IRCA here explicitly allows state regulations of licensing laws. But, needless to say, with enough creative lawyers the Chamber of Commerce managed to argue that the law implicitly barred states from issuing sanctions dealing with licensing unless someone had also been sanctioned by federal immigration authorities (which of course, never happens.)

A panel of judges from the 9th Circuit Court of Appeal (different from the Justices who recently upheld an injunction against SB 1070) upheld LAWA. It went to the Supreme Court last December. Roberts' decision held that "other than licensing" meant "other than licensing" but also reaffirms a great deal of state authority on immigration.

Despite the fact that the ACLU and company tried to make the argument that states have no authority to issue immigration authority, they are now arguing that this ruling is very narrow and won't have any effect on the immigration debate as a whole. According to Cecillia Wang, director of the ACLU Immigrants' Rights Project:

"Today's decision is a narrow one that only upholds Arizona's specific law on employment verification. The decision has nothing to do with SB 1070 or any other state or local immigration laws. We are disappointed with today's decision and believe it does not reflect what Congress intended."

[Supreme Court Upholds Arizona Employment Law in Narrow Ruling, ACLU Press Release, May 26, 2011]

The ACLU is arguing that the decision was based almost solely on the belief (wrongly in its opinion) that Congress had explicitly granted states the authority to regulate business licenses. Therefore, anything that Congress does not explicitly grant states the right to do on immigration is not affected by this ruling.

Fortunately, this is wishful thinking on the ACLU's part.

In some respects, LAWA is farther-reaching than SB 1070. LAWA actually adds a new regulation in Arizona—mandatory E-Verify—which is not required by the Feds, while SB 1070 merely mirrors federal law and applies it to state law enforcement.

Furthermore, Roberts' decision resolutely reaffirms the 1976 case Decanas vs. Bica where the Supreme Court unanimously held that California had the authority to enact employer sanctions against the hiring of illegal immigrants long before the federal government made this law in IRCA. In other words, they recognize that the right for states to discourage immigration does not need to be explicitly granted by Congress.

Even if the ruling established no precedent beyond E-Verify, the effect still goes far beyond Arizona. Other states that have passed immigration enforcement bills include Georgia, Oklahoma, South Carolina, Mississippi, and Indiana. In fact, the ACLU sued Indiana over its law just the day before the Chamber of Commerce vs. Whiting decision. The 3rd Circuit Court of Appeals, which overturned the Illegal Immigration Relief Act in Hazleton, PA, is expected to now defer to the Supreme Court's opinion early next week.

More importantly, the ruling in Whiting will provide support for a national E-Verify measure. In the wake of this decision, Cheap Labor lobbyist Tamar Jacoby,[Email her]now appears resigned to the fact that it will pass, noting

"Lamar Smith is expected to introduce a bill in coming weeks mandating that most or all employers across the country enroll in the E-Verify program. Just what today's ruling will mean for that bill is unclear. But it only increases the already good odds that Smith's bill will move easily through Congress."

Jacoby says her new goal (and therefore immigration patriots' top concern) is to make sure that "worksite enforcement must be accompanied by programs that allow the foreign workers we need to enter the U.S. legally" [Re: US Supreme Court ruling on Legal Arizona Workers Act, Immigration Works,, By Tamar Jacoby, May 26, 2011 (pdf)]

I will write more about the national E-Verify fight in a future column. But, as Jacoby shows, immigration patriots' statewide measures are forcing the federal government finally to move forward to the point that we are on the verge of this even bigger victory.

As we celebrate our troops on Memorial Day, we should also give thanks to Russell Pearce, IRLI, and the other patriots who are making sure that there is still a country left to fight for.

"Washington Watcher" [email him] is an anonymous source Inside The Beltway.

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