SCOTUS: Immigration Isn't Just a Fed Problem

Thursday, the Supreme Court upheld a 2007 Arizona law allowing authorities to revoke the business licenses of companies that hire illegal immigrants.  The ruling has activists on both sides of the immigration debate speculating about the future of SB 1070, the even more controversial Arizona statute that grants the state unprecedented authority to enforce federal immigration law.

Portions of SB 1070 have already been struck down in federal circuit court, though Governor Jan Brewer has said Arizona will appeal to the Supreme Court.

Despite similarities between the laws, Center for Immigration Studies Executive Director Mark Krikorian does not see Thursday’s decision as indicative of how the Supreme Court might decide SB 1070.

“I don’t think it tells us that SB 1070 will also be upheld.  It might, but I wouldn’t bet on that just based on this decision.  This was a much more clear-cut case,” Krikorian said.

Cecillia Wang of the ACLU agreed.  “This decision has nothing to do with SB 1070 or any other state and local immigration laws,” she told the Washington Post.

The foundation for the upheld law, Krikorian argued, lies in the text of the 1986 federal Immigration Reform and Control Act.  Under that law, states are forbidden to punish businesses for violating federal immigration statutes, except “through licensing and similar laws.”

And Arizona’s law did exactly that, as well as requiring businesses to use E-Verify, a federal database, to check the immigration status of new hires.  Krikorian argued, “This decision really was more based on the simple language of the statute.  The court is just acknowledging the leeway that already exists.  It isn’t creating new leeway for states.”

Nevertheless, Krikorian did allow that this decision could create momentum for Congress to pursue a national E-Verify mandate and increase pressure on President Obama to sign one, if it were passed. “The whole thing has approval from the Supreme Court now,” he said.

Krikorian also contends that even those resistant to the E-Verify system will likely push for congressional action, even if just to avoid a patchwork of state and local immigration statutes.  The electronic system has been criticized for being inaccurate, both wrongly clearing illegal workers and incorrectly accusing legal ones.  “In other words,” Krikorian says, “even the E-Verify skeptics might be interested in a national mandate just so they can keep control over the thing.”

If nothing else, Monday’s decision shows that the John Roberts-led court may not see immigration enforcement as an exclusively federal responsibility, even if they view SB 1070, itself, as overstepping constitutional boundaries.

“It does suggest that the majority of the court is not reflexively opposed to state involvement in immigration enforcement.  Whether that will actually translate into upholding the suspended portions of SB 1070 is still an open question, but it certainly doesn’t preclude that as a possibility,” Krikorian said.

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