President Obama once favored a “crackdown on employers” who hired illegal immigrants, and as a candidate called for “much tougher enforcement standards” for companies that employed illegal workers.
But this week, Obama’s top courtroom lawyer will join the U.S. Chamber of Commerce in urging the Supreme Court to strike down an Arizona law that goes after employers who hire illegal workers.
The administration also seeks to void a part of the state’s law that tells employers they must check the federal government’s E-Verify database to make sure their new hires are authorized to work in the United States.
The move sets the stage for a high court ruling on the most disputed issue in immigration law: Can states and cities enforce their own laws against illegal immigrants, or must they wait for federal authorities to act?
The administration found itself in an awkward spot in part because the Legal Arizona Workers Act was signed into law in 2007 by then-Gov. Janet Napolitano. She said it would impose the “business death penalty” on employers caught a second time hiring illegal workers, and blamed “the flow of illegal immigration into our state
Now, however, Napolitano is Obama’s secretary of Homeland Security, which enforces the immigration laws and administers E-Verify, a voluntary electronic program that checks whether new hires are authorized to work in the United States. Federal agencies and federal contractors are required to use the program.
This year, the administration had a fierce internal debate over what to do about laws in Arizona and elsewhere against illegal immigration.
In November 2009, the high court asked the Justice Department to weigh in on the Legal Arizona Workers Act and whether it conflicted with federal law.
Several participants in the debate say Napolitano counseled against intervening in the case. She and others emphasized that the administration had tried to send the message that it favored strong enforcement, particularly against employers who were repeat violators.
But in the spring, immigrant rights advocates stepped up the pressure and argued that the administration had to take a stand against a second Arizona law. SB 1070 required police to check the immigration status of people they have lawfully stopped and suspect are in the country illegally. Activists feared it would lead to “racial profiling” and harassment of legal immigrants.
In May, shortly after Arizona Gov. Jan Brewer signed SB 1070, the Obama administration made its decision.
It sent a brief to the Supreme Court urging the justices to hear the challenge to the Legal Arizona Workers Act on the grounds that it conflicted with the federal government’s exclusive authority to enforce immigration laws.
In recent years, most states and many localities have considered laws that restrict or regulate illegal immigrants in areas such as employment, education, housing or law enforcement. Governors and lawmakers, including Napolitano, said they needed to act because the federal government had failed to enforce immigration laws.
Lawyers for the federal government argued these state and local laws should be thrown out because they conflicted with Washington’s exclusive control over immigration enforcement.
In July, a federal judge in Phoenix, acting on a suit by the Obama administration, blocked SB 1070 from taking effect. That case is before the U.S. 9th Circuit Court of Appeals in San Francisco.
For its part, the Supreme Court has not ruled squarely on the federal-vs.-state clash over immigration since 1976.
“This figures to be a historic case because it has been so long since the court has focused on the intersection between state and federal authority on immigration,” said Muzaffar Chishti, director of the Migration Policy Institute at New York University law school.
If Arizona wins, “it will embolden a lot of states to go further with new immigration laws,” Chishti said.
Legislatures in 44 states have pending measures on immigration, according to the National Conferences of State Legislatures.
Cities and counties could get into the act as well. The city of Hazleton, Pa., gained national attention in 2006 when it adopted an ordinance to fine employers or landlords who did business with illegal immigrants. A federal judge and a U.S. court of appeals struck down the ordinance, but a win for Arizona in the Supreme Court would probably revive it.
A key legal issue in the Arizona case deals with a provision of the 1986 Immigration Reform and Control Act, in which Congress made it illegal for employers to hire “an unauthorized alien.” It also added a provision that said the federal law “preempts any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ ... unauthorized aliens.”
According to the Chamber of Commerce and the Obama administration, the Arizona Legal Workers Act should be struck down because it imposes sanctions on employers who hire illegal workers.
It has a “broad punitive sweep,” said Acting Solicitor Gen. Neal Katyal.
The state, however, said the law should be upheld because it was a “licensing” measure. Employers who are convicted twice of knowingly hiring illegal workers can lose their licenses to do business.
“You can write any law as a licensing measure,” Chishti said.
A broad coalition of business, labor and civil rights groups sued to block the Arizona Legal Workers Act, but a federal judge in Phoenix and the 9th Circuit Court of Appeals upheld it.
“The power to regulate the employment of unauthorized aliens remains within the states’ historic police powers,” wrote 9th Circuit Judge Mary Schroeder.
Supreme Court Justice Elena Kagan was the U.S. solicitor general last year when the court asked her office to weigh in on the Arizona law. For that reason, she has stepped aside from the case of Chamber of Commerce vs. Whiting.
That means the challengers, including Katyal, face an uphill fight. They will need the votes of five out of eight justices to knock down the Arizona law.