• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Arizona Immigration Law in the Supreme Court: Employers Who Knowingly Hire Illegal Aliens

    The oral arguments in the Supreme Court on Wednesday in U.S. Chamber of Commerce v. Whiting were an interesting mix of tap dancing, political correctness, and duplicity. In Whiting, the Chamber of Commerce sued the state of Arizona over its 2007 Legal Arizona Workers Act, which (1) authorizes the suspension and revocation of the business license of an employer that knowingly or intentionally employs unauthorized aliens, and (2) requires all employers to use the federal E-Verify program to confirm that the people they hire are legally authorized workers.

    The Chamber claims that Arizona’s law is preempted by federal immigration law, but the lower courts disagreed—even the Ninth Circuit Court of Appeals, which is the most liberal federal appeals court in the nation—upheld the law. In fact, Congress did preempt all state “civil or criminal sanctions” against employers who hire illegal aliens when it imposed federal employer sanctions in 1986 through the Immigration Reform and Control Act. However, that law has a specific exemption for state “licensing and similar laws” (8 U.S.C. 1324a (h) (2)). As Arizona Solicitor General Mary O’Grady argued, Arizona’s statute falls squarely within the “licensing and similar laws” exemption since it suspends or revokes the business license of employers violating the law.

    The political correctness was exhibited by (surprise!) Justice Sonia Sotomayor, who took political correctness to new heights in her infamous “wise Latina woman” speeches. In her very first question, she started to ask the Chamber’s counsel, Carter Phillips, about the violation of federal law by the hiring of “illegal aliens,” a horrible slip of the tongue that could get her uninvited to the next hyphenated-American Happy Hour. However, she quickly stopped herself after she uttered that infamous and politically unacceptable (but legally accurate) term and changed her question to ask Phillips about the hiring of “undocumented aliens,” the term she then used for the rest of the arguments. Heaven forbid that Justice Sotomayor might offend La Raza or the Asian American Legal Defense Fund or any of the other racial entitlement and balkanization organizations that filed amicus briefs in the case.

    The tap dancing and duplicity were exhibited by the Justice Department and the Chamber trying to convince the Court that the statute does not really mean what it says and that a licensing law is not really a licensing law. Phillips told Justice Scalia that Arizona’s “scheme here is not a licensing law.” Really? What else would one call a law that suspends or revokes a business license? As Justice Scalia said, “Insofar as this law limits the authority to do business with the state, it is a licensing law.” But that was a point that neither the Chamber, not the government, nor the liberal justices like Stephen Breyer or Sotomayor wanted to admit, because if they do, then Arizona’s law falls squarely within the exception promulgated by Congress.

    Justice Breyer even asked Phillips if he agreed with the amicus brief filed by the SEIU on this issue. Phillips answered that “the SEIU brief does a very nice job” of explaining it. It doesn’t, but then it should be a sign to the Chamber that it is on the wrong side of an issue when it is agreeing with the SEIU. Instead, the Chamber (with whose positions I usually agree) is trying to protect employers who intentionally and knowingly violate our federal immigration laws by hiring illegal aliens—oops, make that “undocumented workers.”

    Watching Neal Katyal, the Acting Solicitor General, argue on behalf of the government was almost painful. Because of the Obama Administration’s policy against enforcement of our immigration laws, Katyal was put in the position of making specious arguments that are a misinterpretation of the applicable law. He actually told Chief Justice John Roberts that traditional licensing laws in 1986 (when the federal immigration law was passed) “were largely farm labor contractor laws,” a ridiculous assertion that the Chief Justice quickly called him on when he pointed out businesses have to comply with licensing laws “pretty much across the board.”

    Katyal then made the equally absurd argument that a law that allows revocation of your license is “not a licensing law.” Of course, that assertion put him in a very awkward position. Justice Roberts asked whether the government was saying that if Arizona discovered that a lot of employers were employing child labor, it could not revoke their business license. That was the obvious logical outcome of Katyal’s claims, and he did his best to avoid answering the Chief Justice’s hypothetical. It would obviously be a public relations disaster if the Solicitor General argued that a state cannot pull the business license of an employer using child labor.

    As he usually does in his well-known pithy style, Justice Antonin Scalia encapsulated the problem faced by Arizona that led to this law: “Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration. And therefore, they had to take this very massive” step, which is predicated on the fact that “the federal government has simply not enforced the immigration restrictions.”

    The Chamber also claimed that the Arizona law was unfair because “it is never 100 percent clear precisely who is and who is not an authorized worker.” Gosh, if only there were a system that employers could rely on to help them make that determination. Wait a minute—there is such a system. It is called E-Verify. But then the Chamber and the government are also claiming that the second part of the Arizona statute, which requires employers to use the E-Verify system, somehow interferes with federal immigration enforcement because the E-Verify system is voluntary under federal law.

    That argument is just as ridiculous as the other claims made by the Chamber and the government. The whole purpose of the E-Verify program that was promulgated and funded by Congress was to give employers a quicker, easier system for meeting the work authorization requirements of federal law. By mandating its use, Arizona is simply complementing and enhancing federal enforcement of immigration laws, something that is obviously anathema to this Administration.

    Unfortunately, Justice Kennedy’s questions seemed to indicate that he was giving some credence to the specious arguments being made by the plaintiffs. And there is no doubt how Justices Ruth Bader Ginsburg, Breyer, and Sotomayor will vote, given their past history of bending, breaking, and twisting the law to suit their liberal ideological views of public policy.

    Fortunately however, Justice Elena Kagan is recused from this case. So even if Justice Anthony Kennedy swings to the left as he does far too often, a four-to-four split vote by the Supreme Court would allow the Ninth Circuit decision upholding Arizona’s law to stand. That would be a victory for the rule of law and for enforcement of our immigration requirements.

    Posted in Legal [slideshow_deploy]

    23 Responses to Arizona Immigration Law in the Supreme Court: Employers Who Knowingly Hire Illegal Aliens

    1. Pingback: Tweets that mention The Foundry: Conservative Policy News. -- Topsy.com

    2. Cameron, Calfiornia says:

      I believe that everyone has the right to be a US citizen, I disagree with this articles content. The illegal aliens that are here deserve to stay here they have earned a life and have payed taxes as normal people however are not able to receive taxes because of a faulty Social Security Number. They also would need to live the life they have built behind to go back to their home country to wait to receive a visa.Which could possibly take up to 8 years

      • Kyle says:

        Illegal aliens don't pay taxes at all other than the ones that come out of their paycheck. They are here illegally therefore they broke the law. If they want to be a citizen of the United States follow then rules. They are taking jobs away from people that could possibly be born citizens or citizens that immigrated from another country legally. Illegal aliens live here in America for free….while others follow the rules pay taxes.

    3. Jeanne Stotler,Woodb says:

      Cameron, get your head out of the sand, This country was founded on laws, read the dictionery, Illegal means you BROKE the LAW. They do take away jobs, I know as my sons are one a house painter, the other does home improvement and they and their friends all have the same tale to tell, THEY cannot compete with the prices these law breakers charge, the illegals do not pay into the system, they send much of their money back to their country of origin, they live four or more families in a single family home, park vehicled on the lawns, we have even had some who decided to raise pigs, chickens etc in reidential areas contrary to laws. Also what about driving w/o a lic. no insurance, I go go on and on about the laws broken, not only about the drugs. I am not anti immigration, my father was born in Denmark and my family came here legally, I am against what is happening in Ariz, Tex, Calif and New Mexico on the borders. Wake Up this is a problem, drugs, guns and the rape that occur are not good gor America.

    4. Greg, Albuquerque says:

      Cameron – what you believe (feel?) and what is law appear to be two very different things. Your entire position is based upon "rights" to citizenship for ANY ONE. Listen to what you are saying and try to reconcile that with history and LAW. ANY ONE/EVERY ONE has "right" to be an American citizen? Come on. Having been personally involved in helping maybe 15-20 families work their way through the legal immigration process, I find you willingness to reward those unwilling to follow the rules with head of the line privileges. Further – you must be uncaring or ignorant of the potential consequence of their use of stolen SSNs (i.e., significant and usually negative impact on the real SSN holder's social security entitlement payments).

      Come on – get with the program, the immigration rules are their for a pupose. If you don't like them, we have a process to change the rules – elections.

      Now – if you want support for going after employers who flaunt the laws and hire these people, I'm right there with you. Having seen the impact of low paid illegals in the contstruction industry on the companies that follow the rules, I am for severe penalties for companies that clearly violate the law.

    5. Mike, California says:

      No where is it written that "everyone has the right to be a US citizen" as some would suggest. The "illegal aliens" that are here do not "deserve" to stay. Since they are here illegally and in all probability are using false documents, ie Social Security numbers, etc , which is also illegal, 'illegals' are committing identity theft at the least. This is also call "fraud".

      The Constitution allows all laws not written specifically for the federal government to follow are to be left to the states. The US government has decided not to enforce their own laws regarding immigration into the U.S., therefore it is up to the state to determine what that state will pursue in it's own interest and security of its citizens. It's fairly straightforward and simple. Enforce existing laws. Illegal citizens are here for jobs and benefits. Stop employers from hiring illegal aliens and the illegals will go back to where they came from. There is no need for governmental deportation because the "illegals" will eventually deport themselves. How do I know you may ask? Because I used to work with them in the landscape industry.

      The Arizona law is a viable and legal state law. Let it stand.

    6. Rhea Burns, Knoxvill says:


      How in the world were you able to report on this? I enjoyed this piece and my question was meant to be a real complement. The complexity of this, the PC means of the words, were well done. Thank you for this article. What a mess we are in letting others decide what is right.

    7. MaryAnne, Pittsburgh says:

      Everyone does not have a right to become an American citizen. It is a privilege and honor to be bestowed on immigrant individuals who love our country and who want to live the American dream of getting ahead through work, education, determination and cooperation. Our government has rightfully denied entrance to criminals, suspected drug dealers, people with dangerous diseases, or fomenters of violence.

      While there are good people who have arrived illegally, it's important to note that they have arrived illegally. They have cimcumvented standards and laws in place to achieve their goal. Some may be political refugees. If so, they can apply for residence on that basis. Some may be economic refugees. Again, they can apply to live here based on what they offer our country.

      It is always possible to change laws but we must live by rules in order to get along, have an organized citizenry and guarantee rights for all. If current laws do not appropriately address issues, change them but do not circumvent or bastardize them in the court system.

      Should we put our citizenry at risk for greater costs incurred to handle the influx of illegals? Should we penalize our citizens' Social Security funds and also provide free medical care on their behalf? Should we jeopardize and hamper our security personnel who are trying to track down the criminal element of legal and illegal immigrants?

      Hundreds of thousands of immigrants came here legally. My father was one. He survived, thrived, served in the military and made us proud to live in a country that offers us all the same opportunities – which are incidentally guaranteed by law.

    8. Rick74 says:

      What is it about the word "illegal" that I do not understand?

    9. Pingback: Must Know Headlines 12.10.2010 — ExposeTheMedia.com

    10. Steve, Tennessee says:

      I suppose we shouldn't put bank robbers in prison or take the money back from them because they have already built a life with it and they would have to leave that life behind if they went to prison and had the money taken away?

    11. Glenwood Springs, CO says:

      No, not everyone has a right to be a US citizen. It's not in the Constitution. Only those who apply for citizenship and subsequently are authorized by the Government to be acceptable may become such. Squatters rights don't apply here.

    12. Leon Lundquist, Dura says:

      Amazing, in most Courts the admission of criminal acts in Open Court would get them a Grand Jury, or something. But somehow the Highest Court in the land glosses over the inconvenient fact the Justice Department isn't prosecuting Illegal Aliens, isn't protecting the Border, won't do its job so that Arizona doesn't have to. I really do expect more from our Justices. As for the Progressive Liberals on the Court, how can they Represent Americans? Progressives represent the Foreign Interest, so surprise! Surprise! They are undermining the Constitution by failing to Rule ten thousand Unconstitutional Laws Unconstitutional! Judicial Activists Judges are usurping Legislative Power, usurping Congress by creating balmy rights and failing to defend real Rights!

      Thanks Hans for this marvelous peek behind Obamas curtain. Have you figured out a way to Impeach Activist Judges?


      to cameron of cal.




    15. ozzy6900 says:

      Illegal aliens brokc the law the moment they crossed the boarder. Why is this so hard to understand? Why is everyone trying to cut them a break? Wherc are thc breaks for Citizens? All we ever get is taxed to pay for all the "uhfortunates".

    16. Carol,AZ says:


      It would be a victory for the legal due process in America to re-employ Americans.

      If you think that E-Veriofy doesn't work, here's the facts.

      My husband new hire was processsed through E-verify here in AZ.

      His work history did not comply with his resume.

      Seems while this young man was serving his country for one year in AF, an illegal stole his SS #, got a job under this fraud, and worked for one year employed for a machine shop.

      This sadly is multiplied by thousands of the scenario here in America.

      How many of you are responsible for looking the other way my fellow Americans?

      We did not.

      NIS was contacted and the illegal was deported.

      No amnesty

      No Dream Act

      Employ Americans

    17. Don Pagani-Angier, N says:

      When is everyone in this country going to understand that we are being invaded every hour of the day, each day of the week and year by "ALL" kinds of illegal aliens from Mexico and many other countries that use our border for a point of entry ! Then all they have to do is have a child who is given automatic citizenship (Anchor Babies !) and then the whole family is allowed to stay and leach off our all ready stressed social support systems ! Then you also have your

      mix or Terrorists, Drug Dealers, etc. and a Federal Government that refuses to secure our borders and takes States to Court for protecting their citizens within their states ! It is "Absolute" Insanity !

      This is a "National Security" threat and violates current Immigration law and many other "Criminal" Federal and State Laws ! It also makes law biding citizens and legal immigrants pay the bills for them on top of that !

      It is estimated that at least 14-20 million illegals are in our country right now and that they have approx 300,000 children every year or so ! Do the math

      and you will quickly see we can not afford or tolerate this ! Citizens who have paid their dues all their lives and worked hard for a decent retirement are facing

      living without a decent level of income in their golden years because we are giving all their benefits to illegals !

      We also have over 20 million people out of work who are legal citizens and a large percentage of these are military veterans ! We have many homeless

      american citizens who are second and third generation born here who are not getting a fraction of the assistance we give illegals !

      States are going bankrupt along with the federal government and if this is not stopped, we will see another civil war in this country that will make the

      last civil war look like a girl scout cookie sale in comparison ! You may live to see Law abiding and God fearing people who would not "Normally" take the law into their own hands, do just that and we will go back to the 1800's !

      Please wake up and do everything in your power to make a difference and demand that our elected officials represent us "Americans" ! While you are at it, "Pray" that we are given the strength to see through all the lies coming out of a lot of politicians mouths in Washington and to hold them responsible equally by the same laws we have to abide by !

    18. Pingback: Tweets that mention Arizona Immigration Law in the Supreme Court: Employers Who Knowingly Hire Illegal Aliens | The Foundry: Conservative Policy News. -- Topsy.com

    19. Pingback: World News: Serbia seeks probe into organ trafficking report | Pitts Report

    20. George Fuller, Saras says:

      It is distressing when Supreme Court Judges make nonsensical arguments against common sense law.

      You don't have to go far to find the reason ordinary citizens no longer trust their government.

    21. Harry Snyder Tempera says:

      Two points: 1: I understand that 15% or more of these "immigrants" were criminals when they crossed the U.S. border. And a high percentage of convicts ("inmates") in California prisons are Illegals and very expensive to feed and house.

      And the international gangs are here, too, because of our porous border.

      2: The present unemployment rate in the U.S. is almost 10%. Every ten illegal alien adults expelled would result in several job openings for unemployed American citizens, income for their families, and that many fewer people on unemployment comp. or AFDC, AND producing people contribute to the economy rather than take from it.

    22. stadtbon dayton nv says:

      Thanks to Dan Pangani-angier NC (and others) for good points. Sadly our congress who enjoy no term limits, lucrative pay, multiple homes, healthcare etc. in their infinite wisdom feel that foreign 'uhfortunates' (thank you, ozzy6900) have more right to the 'American Dream' than second and third generation Americans. Would say taxpayers except that so many of us have lost jobs or suffered gross hourly cuts (you'd think this could trickle up) due at least in part to illegals, oh, excuse me, 'undocumented' taking American jobs, not to mention welfare and disability benefits. Heard on NPR one 'undocumented who owns a business and claims a Federal Tax ID number.

      Federal lawmakers are well aware that Americans (i.e. not 'undocumented' aliens, children brought here by the same, anchor baby citizens who incidentally have SS numbers on birth which the parents then use to work) are tired of paying with taxes and now with job loss, medicare cuts, possibly loss of social security retirement in our futures, but the reality is that life is good for congress and they don't care about the people (except for legal immigrants allowed to vote) who gave them the afluent lives they lead. Given this fact it is time to organize demonstrations (make trouble for the establishment like babyboomers did in the late 60's and early 70's). Let's contact some of those not killed in Vietnam. Maybe we can get a playbook. And what do we want? 1. Stop all entitlements to illegals (except for emergency medical care then deportation). 2. Allow States to control hiring illegals as AZ has done. After all States determine whether or not to levy State income tax, food tax, medicaid dispersement etc., even minimum wage. 3. Federally limit congressional terms. 4. Further limit the electoral college, and never again allow the Supreme Court to elect a president. Never could figure out why someone not accused of a crime needed equal protection. 5. Repeal birthright citizenship modifying this to births to legal second or third generation parents or even legal immigrants residing in the US for ten years or more. 6 Federally mandate E-Verify in each State. 7. Federally outlaw State employment offices from listing jobs requiring Spanish fluency or any other language fluency except the offical language (remember?, English). 8. Stop all piggyback (pork) attachments to congressional bills. 9. Stop Washington DC lobbyists now. 10. Eliminate unnecessary government offices and agencies and encourage States to do the same. 11. Take government student loans away from collection agencies. They are high interest opportunistic bottomfeeders. 12. Suspend foreclosures. 13. Stop purposeless econonic wars and war profiteering. 14. Don't sell us out to extend tax breaks again to the rich. War criminals should answer not countries with no threats or attacks on the US. America, the 'melting pot', become the 'witches caldron' – magic for the rich paid for by the poor.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.