The Supreme Court’s showdown over whether states can aggressively enforce laws against illegal immigrants may have ended in a draw Wednesday.
If so, Arizona’s 3-year-old law that cracks down on employers who knowingly hire illegal workers will stand. It could serve as a model for other states and cities that seek to adopt stricter enforcement measures.
But if Justice Anthony M. Kennedy joins with his more liberal colleagues, as he did for part of Wednesday’s argument, it could signal trouble in the future for other laws targeting illegal immigrants. They include Arizona’s law that requires police to check the immigration status of suspicious people who are lawfully stopped, which could reach the court during its next term.
At issue Wednesday was the fate of the Legal Arizona Workers Act, which imposes the so-called business death penalty on employers who are caught twice knowingly hiring illegal workers.
Lower courts upheld the law, but the Obama administration and the U.S. Chamber of Commerce joined in arguing that the state law should be voided because it conflicts with the federal government’s authority over immigration.
But those challenging the law were at a disadvantage Wednesday because new Justice Elena Kagan, who came from the Obama administration, announced she would not participate in the decision. That set the stage for a possible 4-4 split, which would uphold Arizona’s law but set no legal precedent.
The stakes were high, as it has been more than 30 years since the Supreme Court ruled on a clash between a state and the federal government over immigration. Such clashes have become common in recent years as states and cities consider new enforcement measures to target illegal immigrants.
Kennedy, who often casts the deciding vote in close cases, did not say definitively how he would decide. But near the end of the argument, he said he agreed with criticisms voiced by the three liberal justices. Arizona’s strict requirements on employers seem to be “an almost classic example of a state doing something that is inconsistent with a federal requirement,” he said.
If Kennedy follows that view, he could cast a fourth vote to strike down Arizona law — one short of a majority, but potentially a fifth vote with Kagan the next time.
Justice Antonin Scalia took Arizona’s side throughout the argument. He said the state was forced to adopt strict measures of its own because of the lack of federal enforcement.
“That’s the only option” the state had, he said. Arizona faced “serious trouble financially because of unrestrained immigration.... The federal government has simply not enforced the immigration restrictions” in federal law, he said.
Scalia’s fellow conservatives sounded as though they would join him in support of Arizona’s law.
In challenging Arizona, Acting Solicitor Gen. Neal Katyal said Congress passed a “comprehensive” immigration law in 1986 that did not allow states to go their own way. It “broadly swept away state and local laws” that punished employers for hiring illegal workers, he said. He pointed to a disputed provision that says states and localities may not impose criminal or civil sanctions on employers for immigration violations, other than through licensing laws.
If Arizona can adopt its own sanctions for employers for hiring illegal workers, Katyal said, then “40,000 localities can do it.... It would permit all the states to have their own laws.”
The liberal justices agreed Arizona was imposing extra sanctions on employers.
But Arizona’s solicitor general, Mary O’Grady, emphasized that the 1986 law allowed states to enforce licensing laws, and that Arizona enforces its law by taking away a business license.
The conservative justices picked up her argument and said the state was free to do that under the federal law.