Supreme Court upholds state requirements on employment verification

posted at 2:25 pm on May 26, 2011 by Ed Morrissey

In a close vote, the Supreme Court ruled today that states have the right to enforce laws that require businesses to verify that employees are eligible to work in the US.  The court ruled 5-3 that an Arizona law did not infringe on federal jurisdiction but instead fit within an explicit exception on licensing:

The U.S. Supreme Court on Thursday upheld an Arizona law that imposes sanctions against businesses that hire illegal immigrants.

The court, on a 5-3 vote, said federal immigration law does not bar Arizona from suspending or revoking the licenses of businesses that employ unauthorized aliens.

“Because we conclude that the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted,” Chief Justice John Roberts wrote in a 27-page opinion.

Elana Kagan recused herself from this case, as she had done some prior work on it as Solicitor General.  Otherwise, the vote broke exactly as one would suspect, with the three liberal jurists dissenting from the four conservatives, and Anthony Kennedy siding with the Right.

The ruling is important in several ways.  First, it establishes that state governments have an interest in enforcing employment eligibility.  That point may come into play in later cases, and it lends credibility to efforts in other states to mandate employment-eligibility verification.  Next, it allows those other states to use Arizona’s law as a template.  That will strike a blow at the economic magnet that incentivizes illegal immigration, hopefully slowing down the tide crossing the borders and making later immigration reform that much easier.

Matthew Franck at Bench Memos offers a brief reminder of another virtue of the ruling — a reminder that courts should stick to the textual meaning of law:

Chief Justice Roberts wrote for the majority, and based the ruling on the plain meaning of the federal immigration statute, which expressly preserves the power of states to legislate on the subject of employing illegal immigrants through their licensing power, as Arizona had done here.

This should have been an 8-0 ruling, given that the law was written with Arizona’s intent expressly in mind.  It’s another reason that elections for executive office matter very, very much.


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OT: Michele Obama requests to visit British school with girls in burkas

The solo visit by the President’s wife was arranged at her suggestion to help encourage the pupils from Elizabeth Garrett Anderson school in North London to think about studying for a degree.

The First Lady had visited the school two years ago and has kept in touch ever since, writing letters and encouraging the girls in their studies.

faraway on May 26, 2011 at 2:31 PM

Elana Kagan recused herself from this case, as she had done some prior work on it as Solicitor General.

Interesting precedent.

Vashta.Nerada on May 26, 2011 at 2:34 PM

Kagan had to recuse as she had worked on this prior to being put on the supreme court – now obviously she has proven that she must be recused when Obamacare gets to the court.
Yea!

StuckinliberalNY on May 26, 2011 at 2:34 PM

Great minds think alike

StuckinliberalNY on May 26, 2011 at 2:35 PM

Elana Kagan recused herself from this case, as she had done some prior work on it as Solicitor General.
Interesting precedent.

Vashta.Nerada on May 26, 2011 at 2:34 PM

Indeed.

Then Thomas must recuse himself when ZeroCare comes up /crr6

AH_C on May 26, 2011 at 2:36 PM

Kagan had to recuse as she had worked on this prior to being put on the supreme court – now obviously she has proven that she must be recused when Obamacare gets to the court.

Yea! Count It!

StuckinliberalNY on May 26, 2011 at 2:34 PM

FIFY

Del Dolemonte on May 26, 2011 at 2:37 PM

At least Bush got Roberts and Alito right.

WisCon on May 26, 2011 at 2:37 PM

This is good news.

Chief Justice Roberts wrote for the majority, and based the ruling on the plain meaning of the federal immigration statute, which expressly preserves the power of states to legislate on the subject of employing illegal immigrants through their licensing power, as Arizona had done here.

I’m so glad Roberts is there as Chief Justice.

You’re right, Ed, that this should have been 8-0.

And, yes, Presidential elections do matter, but you forget that if conservatives hadn’t protested loudly about Miers and Gonzalez being considered for SCOTUS we wouldn’t have had Alito and Roberts.

SCOTUS is not for stacking with your friends any more than it is for stacking with judges who want to make up law as they go along.

INC on May 26, 2011 at 2:38 PM

Slavers.

Barry Goldwater: “Don’t offer amnesty to those already here illegally. Sanctions against employers who hire illegal immigrants are unfair; it is the government’s responsibility to determine who is here legally.”

American businesses: Doing the jobs the government refuses to do.

We already play tax and child support collector, and med. ins. provider for the govt, and now we have to play ICE agent, but get zero compensation for these govt-mandated tasks.

Also, as you may or may not be aware, an employer is not allowed to use E-Verify as a pre-screening tool. If you find they’re illegal via E-Verify, you cannot not hire them because they’re illegal, nor can you fire them if you found out after the fact. You would get in big trouble. You have to wait for the government to tell you what you’re to do about it, all the while living in fear of fines and/or jail time and/or losing your business.

E-Verify is basically a guest book.

Rae on May 26, 2011 at 2:38 PM

At least Bush got Roberts and Alito right.

WisCon on May 26, 2011 at 2:37 PM

See my comment. He got Roberts and Alito right because a lot of people held his feet to the fire. At least he realized this.

INC on May 26, 2011 at 2:40 PM

but what about the living, breathing Constitution???

/libtard

search4truth on May 26, 2011 at 2:42 PM

A lawyer friend writes:

“By the way, an interesting tidbit – the administration not only supported the Chamber, but had Neal Katyal — the Acting SG [Solicitor General, who represents the federal government before the Supreme Court] — argue the case. The SG normally argues only one, maybe two, cases per sitting, and that’s reserved for the cases the gov’t sees as the most important/prominent.”

The reason the administration and the Chamber of Commerce saw this case as so important is that they want to hold back mandatory E-Verify as their main bargaining chip for what they really want out of a “comprehensive” immigration deal — amnesty for the Obama administration and massive increases in imported captive labor (“guestworkers”) for the Chamber. The decision makes it more likely Congress will be able to pass such a mandate on its own, not bundled with any amnesty or guestworker provisions. In other words, it’s not just a win for enforcement but also a setback for amnesty and increased immigration.

Further insight from Mark Krekorian at NRO.

I should also note that this was a federal preemption case, and lawyers on both sides of Obamacare are no doubt trying to read the tea leaves on how SCOTUS would vote on the preemption issue in Obamacare.

Wethal on May 26, 2011 at 2:42 PM

There is no longer even the pretense that justice is blind in this country. I’m glad Arizona got a favorable result on this, but I’m chilled by the predictability of the split.

Dee2008 on May 26, 2011 at 2:49 PM

With you there dee

cmsinaz on May 26, 2011 at 2:56 PM

It was only the AZ law that was reviewed, but a footnote to the majority opinion notes that the following states have similar laws: CO, MS, MO, PA, SC, TN, VA, and WV.

Wethal on May 26, 2011 at 2:56 PM

Kagan believes the Constitution is living and breathing. Too bad she doesn’t feel the same way about a 6 week old fetus.

repvoter on May 26, 2011 at 2:57 PM

The Court rulling is good news.

Now we need to ask the Governors of the other 49 states how they plan to enforce employment eligibility laws.

wren on May 26, 2011 at 3:10 PM

Elana Kagan recused herself from this case, as she had done some prior work on it as Solicitor General.

Interesting precedent.

Vashta.Nerada on May 26, 2011 at 2:34 PM

Yes, maybe she should do that at least for appearance’s sake in the Zerocare case.

‘Parasites’ (That’s for you crr6, take it away!)

Chip on May 26, 2011 at 3:16 PM

Should have been 8-0. Only if you let that pesky U.S. Constitution get in the way.

Wade on May 26, 2011 at 3:17 PM

Wethal on May 26, 2011 at 2:42 PM

Thanks for that quote. I didn’t know the Acting SG was in on this (not surprised), and I’m glad to know this chip is out of the WH hands.

INC on May 26, 2011 at 3:17 PM

At least Bush got Roberts and Alito right.

WisCon on May 26, 2011 at 2:37 PM

See my comment. He got Roberts and Alito right because a lot of people held his feet to the fire. At least he realized this.

INC on May 26, 2011 at 2:40 PM

Those two were among the eight black-robed overlords who ten days ago ruled Amendment IV null and void in favor of the police state.

Yeah, they’re real good “Strict Constructionists.”

Rae on May 26, 2011 at 3:20 PM

Employer sanctions … No jobs no illegals.

Put up signs at the border.

tarpon on May 26, 2011 at 3:24 PM

When do we start calling Kennedy one of the conservative justices? He’s on a real tear the past few years, getting it right a lot.

Akzed on May 26, 2011 at 3:24 PM

When do we start calling Kennedy one of the conservative justices? He’s on a real tear the past few years, getting it right a lot.

Akzed on May 26, 2011 at 3:24 PM

Without Souter and O’Connor to influence him, he seems to be shifting to the conservative bloc. Breyer and Ginsburg hve apparently no persuasive talents as far as Kennedy is concerned. The “wise Latina” isn’t smart enough, and Kagan is just too new.

Still early, though. He voted with the left on releasing the prisoners in California.

Wethal on May 26, 2011 at 3:30 PM

and I’m glad to know this chip is out of the WH hands.

INC on May 26, 2011 at 3:17 PM

Wait! What? Oh.. never mind.

Chip on May 26, 2011 at 3:30 PM

See my comment. He got Roberts and Alito right because a lot of people held his feet to the fire. At least he realized this.
INC on May 26, 2011 at 2:40 PM

whatever

Sonosam on May 26, 2011 at 3:31 PM

We need 60+ non-RINO’s in the senate and a non-RINO in the WH, both of which seem like certainties presently, to start chopping this monster down.

Not that y’all don’t know that, just wanted to say it.

Akzed on May 26, 2011 at 3:38 PM

When do we start calling Kennedy one of the conservative justices? He’s on a real tear the past few years, getting it right a lot.

Akzed on May 26, 2011 at 3:24 PM

If you’re a conservative at 20 you have no heart. If you’re a liberal at 40 you have no brain. I guess for Kennedy instead of 40, it’s 75.

angryed on May 26, 2011 at 3:43 PM

Elana Kagan recused herself from this case, as she had done some prior work on it as Solicitor General.

An impressive display of unexpected integrity.

unclesmrgol on May 26, 2011 at 3:50 PM

An impressive display of unexpected integrity.

unclesmrgol on May 26, 2011 at 3:50 PM

LOL. This is nothing new, she’s recused herself from dozens of cases since she was appointed.

crr6 on May 26, 2011 at 3:55 PM

An impressive display of unexpected integrity.

unclesmrgol on May 26, 2011 at 3:50 PM

Nah. She knew it would go 5-4 against her cause so there was no downside to her. Now if Thomas or Scalia were ever in the same zip code as a lawyer for the anti-Obamacare side, the leftards (see crr6) will be screaming about how unethical the conservative judges are compared to Kagan because they didn’t step down for the case.

angryed on May 26, 2011 at 3:55 PM

Nah. She knew it would go 5-4 against her cause so there was no downside to her. Now if Thomas or Scalia were ever in the same zip code as a lawyer for the anti-Obamacare side, the leftards (see crr6) will be screaming about how unethical the conservative judges are compared to Kagan because they didn’t step down for the case.

angryed on May 26, 2011 at 3:55 PM

Naw. I’ve posted time and time again that there’s no reason for Thomas to recuse himself from any PPACA case. Same with Kagan.

crr6 on May 26, 2011 at 4:00 PM

Naw. I’ve posted time and time again that there’s no reason for Thomas to recuse himself from any PPACA case. Same with Kagan.

crr6 on May 26, 2011 at 4:00 PM

Ummm besides this?

Documents Raise Questions about Supreme Court Justice Kagan’s Role in Obamacare Defense as Solicitor General

Chip on May 26, 2011 at 4:05 PM

Chip on May 26, 2011 at 4:05 PM

Nope, I’ve actually read through all the documents that have been released. Not a single one shows Kagan so much as attended a meeting in connection w/the litigation. It appears Kagan was isolated from the litigation and Katyal took the lead very early on.

I appreciate your good faith concerns about judicial ethics though, Chip.

crr6 on May 26, 2011 at 4:09 PM

The second so-called solution that drew Goldwater’s ire would have penalized an employer who knowingly hires illegal immigrants. He suggested that “these employer sanctions” are “discriminatory and could raise possible violations of civil rights of potential employees. It is the government, not the employer, who should bear the main responsibility of determining who is here legally and who is not.”

It’s the government’s job. Will someone please explain to me what’s conservative about expecting businesses to do the government’s job, for free?

Rae on May 26, 2011 at 4:15 PM

It appears Kagan was isolated from the litigation and Katyal took the lead very early on.

crr6 on May 26, 2011 at 4:09 PM

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Usually the truth doesn’t have to be coordinated, does it?

Ever hear of the phrase ‘Appearance of impropriety’?

(Mostly during Republican administrations and never with Democrat-Oppressive administrations for some odd reason)

Consider that this legislation was Rahmed through without anyone knowing what was in it.

Are we now we are supposed to just accept that Kagan shouldn’t have to recuse herself in one of the most important cases before the Supreme court?

If there was no problem with her involvement, why the pre-emptive strike on Justice Thomas?

Why couldn’t the Obama administration be above board and dare I say it, Transparent about all of this?

Chip on May 26, 2011 at 4:23 PM

Usually the truth doesn’t have to be coordinated, does it?

Well, yeah it needs to be coordinated. People like you will seize on the mildest of inconsistencies as evidence of wrongdoing.

Ever hear of the phrase ‘Appearance of impropriety’?

Yep. Not sure what that has to do with anything. A lot of people think Thomas’ wife’s political activities create an “appearance of impropriety” for Thomas. Also, a lot of people think Scalia speaking at a Tea Party convention created an “appearance of impropriety.” If we’re saying Justices should recuse themselves because a bunch of people think there’s an “appearance of impropriety”, should they recuse themselves? If not, why not?

Consider that this legislation was Rahmed through without anyone knowing what was in it.

It was debated and delayed for months upon months, partially because you guys tried every undemocratic delay-tactic in the book.

Are we now we are supposed to just accept that Kagan shouldn’t have to recuse herself in one of the most important cases before the Supreme court?

Yeah pretty much. Why should she recuse herself? Because you don’t like the way she might vote?

If there was no problem with her involvement, why the pre-emptive strike on Justice Thomas?

Not sure what your point is here, Chip. Could you flesh it out a bit more? Are you saying liberal interest groups have non-public knowledge of Kagan’s involvement in the litigation, and so they’ve waged a “preemptive” strike against Thomas to set up a tu quoque? Could you create a time-line to substantiate that? Do you have any evidence that liberal groups have knowledge the rest of the public doesn’t have?

Why couldn’t the Obama administration be above board and dare I say it, Transparent about all of this?

Chip on May 26, 2011 at 4:23 PM

They have been. Everything you’ve read was released by the SG and the DOJ in response to FOIA requests. And all of it’s been perfectly consistent w/Kagan’s testimony at her confirmation hearings.

crr6 on May 26, 2011 at 4:35 PM

Usually the truth doesn’t have to be coordinated, does it?

Well, yeah it needs to be coordinated.

So, instead of just remembering what happened they have to get to together and conspire as to what the truth really is?

People like you will seize on the mildest of inconsistencies as evidence of wrongdoing.

crr6 on May 26, 2011 at 4:35 PM

What mildest of inconsistencies are you talking about?

Do you know something we don’t?

Chip on May 26, 2011 at 4:53 PM

It was debated and delayed for months upon months, partially because you guys tried every undemocratic delay-tactic in the book.

We did what? Our best efforts were wrapped up in trying to get a liberal Republican elected in Mass. Yours was reconciliation and closed door meetings.

And of course, poll after poll after poll is on our side, not yours. But I’m sure you eventually put up at least one poll in that last thread proving that we’re the ones who are truly fringe. Surely, it’s just my fault for not coming back to that thread.

Esthier on May 26, 2011 at 6:11 PM

YES. We should only hire those legally able to work in the USA. Can you believe it? Its the year 2011 and this is still being ‘debated’.

tx2654 on May 27, 2011 at 4:02 AM