I emerged from Washington’s Capitol South METRO station still recovering from a visual assault in its mezzanine. No less than 28 placards, panels, and banners festooned every wall, pylon, railing, and overhead, each proclaiming JOBS, JOBS, JOBS. Jobs, they implied, were a primary concern of the sponsor, the U.S. Chamber of Commerce.
Ten minutes later I arrived at the U.S. Supreme Court to observe a very different Chamber, now a petitioner concerned with WORKERS, WORKERS, WORKERS – legal or illegal, it didn’t matter. Joining the Chamber was the U.S. solicitor general. When was the last time the Obama regime got in bed with the U.S. Chamber of Commerce?
The case is Chamber of Commerce v. Whiting, challenging the use of E-Verify in Arizona. There were six amicus briefs supporting the petitioner and covering 22 organizations. One of those briefs was by former representative Romano L. Mazzoli who, with one-time senator Alan Simpson, sponsored the 1986 Immigration and Reform Act (IRCA) – legislation central to this case. There were three amici for Arizona’s side: Eagle Forum, Immigration Reform Law Institute, and AZ State Senator Russell Pearce.
The court assembled its wits to deal with three questions:
The Ninth Circuit Court of Appeals had already evaluated these questions and “upheld the statute in all respects....” Now it was the turn of the high court.
Carter Phillips, attorney for the Chamber, argued the IRCA required that prosecution under a state or local law could only follow a federal conviction. Moreover, he said, unlike the Arizona law, IRCA’s comprehensive scheme was a careful balance between enforcement against violators and protection of legal workers. Congress, he asserted, wanted a uniform immigration law, not a patchwork of 40,000 conflicting state and local laws.
Justice Antonin Scalia jumped to Arizona’s defense, arguing that it had a sovereign right to defend itself since the federal government had failed miserably to enforce its own laws. Arizona’s solicitor general, Mary O’Grady, agreed, asserting that Arizona had always been in charge of its internal defenses and that it had inherent police powers as a sovereign state to do so.
A 1976 Supreme Court decision, DeCanas v. Bica, was cited to show that regulating labor within a state, even where it involved a distinction between legal and illegal workers, did not invade the realm of immigration preempted by federal law. It was merely an exercise of a state’s right. Chief Justice John Roberts appeared to agree. He wondered how HB 2779 would be any different from an Arizona law prohibiting child labor.
Justice Stephen Breyer was smitten with the argument that the federal law balanced mild penalties for hiring illegals with protections against racial and ethnic discrimination against legal workers. Arizona’s harsh law put firms out of businesses by revoking their licenses. Absent the anti-bias laws, this could make them cautious to the point of discriminating against certain legal workers. This might have been a good time for AZ Sol. Gen. O’Grady to point out that her state already had powerful weapons against such discrimination in Title 41 of the Arizona Code, as well, as copious downloadable information, advice, and directions – in English and Spanish – on the AZ attorney general’s web site.
At least two justices complained that the Arizona law mandated use of E-Verify while for the feds it was voluntary. They suggested this might overstep since E-Verify was still a federal experiment with a sunset date. A more serious question was put forward by Justice Sonia Sotomayor: the federal law, going back to the IRCA, only required of employers a completed I-9 and inspection of two documents to absolve them of the charge of “knowingly” hiring unauthorized workers. The Arizona law added the additional requirement for E-Verify. Sol. Gen. O’Grady countered that there was no penalty for failing to use E-Verify and that Arizona would not begin to act until the federal government had identified a worker as unauthorized.
Justice Elena Kagan recused herself because of her recent position in the solicitor general’s office. So only eight justices will make the decision. The general feeling is that we will have either a 4-4 decision (in which case the issues will eventually have be raised again) or a favorable 5-3 decision.
This is only the first of many federal vs. state immigration issues that will come before the court. A decision that goes our way will open the pool for many other states to jump in.