In a 5-3 decision, the Supreme Court has upheld a controversial illegal immigration bill enacted in Arizona. It’s an important decision, and as a matter of law if not policy, I actually agree with it. However, it’s important to note what the decision does and does not do.
First, this is not a decision on Arizona’s most recent and controversial immigration bill, which has also been challenged in the courts. That case will be decided on grounds of civil liberties, due process, the Tenth Amendment and similar provisions, and will almost certainly be overturned in the end. It goes way too far.
Today’s decision deals instead with a bill that was signed into law back in 2007 by then-Gov. Janet Napolitano, now the secretary of Homeland Security, and was decided on the wording of existing federal law.
It deals with a very limited issue: Do the states have the power to deny licenses to businesses that do not use E-Verify to check the legal status of new workers? In a decision authored by Chief Justice John Roberts, the court said yes. As Roberts noted, federal law prohibits states from imposing civil or criminal violations on businesses that hire illegal immigrants. However, that same federal law does give states the power to address that issue “through licensing and similar laws.”
That’s what Arizona did, the high court says it’s legal, and again, I think they’re right. As Roberts writes, “Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws.”
Second, the decision has a major impact on the future of Georgia’s new immigration law. HB 87, signed into law earlier this month by Gov. Nathan Deal, took the same basic approach on mandated use of the E-Verify system as did the 2007 Arizona. It too makes the issuance of business licenses conditional on agreeing to use E-Verify. Since the Arizona law survived challenge, the relevant part of HB 87 is now almost certain to survive legal challenge as well.
In fact, the Arizona law contains strong enforcement language that state Rep. Matt Ramsey, the author of Georgia’s law, did not include in his own bill. Ramsey said those provisions were not included because he feared they were unconstitutional, but in light of today’s ruling, they clearly are not.
Ramsey’s decision can be more plausibly explained by fear that if he included strong enforcement provisions, business opposition would have been enough to kill the legislation. And he was no doubt right.
UPDATE: In a dissent joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer asserts that the Arizona law may increase job discrimination against legal workers of Hispanic ancestry. As he points out, employers may try to minimize chances of running afoul of the law by simply refusing to hire anybody who might be illegal.
Roberts brushes aside such concerns, but I think he’s wrong on that point. The concern is legitimate, but given the plain language in federal law, I’m not what can be done about it by the courts.
– Jay Bookman