U.S. Supreme Court Hears Argument in Immigration Case

| Dec 9, 2010 | Employment Immigration |

An aspect of Arizona’s stand on immigration was the focus of a hearing yesterday in the U.S. Supreme Court. A 2007 state law severely punishes employers that hire undocumented immigrants. The state law has two parts.

The first step in the law requires all employers in the state to verify a potential worker’s immigration status through the federal E-Verify program. Florida immigration attorneys know that E-Verify is generally a voluntary program that links Social Security and Department of Homeland Security databases.

Generally, federal law requires federal contractors to participate in the program. E-Verify compliance allows businesses to seek federal contracts.

The second aspect of the state law provides sanctions to companies found to “knowingly and intentionally” hire an illegal immigrant. Since the law was enacted three businesses have faced license suspension or termination of their business license under the state law.

The issue before the Supreme Court is whether federal law preempts the state law. The challenge to the state law is the idea that the federal government and not the individual states have the proper authority to determine immigration policies and priorities. The justices are being asked to interpret the congressional intent behind the 1986 Immigration Reform and Control Act.

The 1986 federal law prohibits hiring illegal immigrants and explicitly pre-empts states from enacting employment immigration laws imposing sanctions “other than through licensing or similar laws.

The matter could result in a four to four split decision as Associate Justice Elena Kagan recused herself from the matter. Kagan served as President Barack Obama’s solicitor general before being elevated to the high court.

At oral argument Justice Ruth Bader Ginsberg said of E-Verify, “this is a federal resource.” She noted that Congress enacted the law to be generally a voluntary program. She questioned how Arizona could “set the rules on a federal resource?”

Justice Anthony Kennedy said Arizona requirement for all employers to use E-Verify “seems almost a classic example of a state doing something that is inconsistent with a federal requirement.”

Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito reportedly appeared to lean in favor of upholding the law during oral argument.

If the court rules in a four to four split decision, the lower court ruling upholding the law and the state law will stand. Many experts believe the high court may split on the issue.

Source: Miami Herald, “Supreme Court hears arguments on immigrant hiring law,” Michael Doyle 8 Dec 2010