Supreme Court Hears Arizona Immigration Case

What can states and local municipalities do �" and not do �" when it comes to enforcing immigration laws? That is the question before the United States Supreme Court today, as it hears a challenge to the 2007 Legal Arizona Workers Act. The decision could have wide reaching implications for Arizona and other states with similar laws governing illegal immigration. Host Michel Martin talks about the case with Washington Post editorial writer Eva Rodriguez.

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MICHEL MARTIN, host:

I'm Michel Martin and this is TELL ME MORE from NPR News.

Coming up, if you're still working through that holiday gift list and tech gizmos are on somebody's letter to Santa, you'll want to stick around to hear Mario Armstrong's recommendations for kids, students and adults.

But, first, we want to tell you about a case being heard in the Supreme Court today that challenges a tough measure aimed at discouraging illegal immigration in Arizona. It's not, however, the law that's gotten all the headlines, which puts local police on the frontlines of checking immigration status. This law was on the books long before that.

And, in fact, a number of other states have similar measures. The measure is called the Legal Arizona Workers Act. And it is meant to sanction businesses who try to hire workers who don't have the proper authorization to work in this country.

We wanted to know more about the case, so we've called upon Eva Rodriguez. She's a Washington Post editorial writer who specializes in legal affairs. She's a former Supreme Court reporter and we call upon her from time to time to tell us about matters before the court. Thanks so much for joining us, Eva.

Ms. EVA RODRIGUEZ (Editorial Writer, The Washington Post): Thanks for having me.

MARTIN: So, could you just start with the basics. What's the issue in this case?

Ms. RODRIGUEZ: The issue in this case is the following: the federal government has always said, hey, immigration is our turf. We have - and only we, the federal government - have the authority to make the law of the land in this area. And part of that is because immigration laws not only have a domestic impact, but possibly an impact on foreign relations.

Well, Arizona throws up its hands and says, but the federal government, you're not doing enough to address the problems that we see day in and day out. And if you're not going to address these particular problems, we're stepping in. And that's what Arizona and several other states have done.

MARTIN: What makes this law stand out? Is it that Arizona was the first or is it the scope of the law? I mean, in some states, for example, state contractors have to be - have to certify, you know, that their workers have proper authorization. So, what is it about this Arizona law that brings it before the court?

Ms. RODRIGUEZ: Right. Partially it's that Arizona is exceedingly proud and not shy about letting the world know about what it's doing and touting, you know, its results. But it is, I think, the scope of this law.

There were some provisions in law for many years that said, you know, in Arizona and other places that said if you're going to hire seasonal agricultural workers, you must show that they have the correct work permits and things like that. But Arizona's law, this particular law, doesn't limit it to that. It applies to not only businesses that do business with the state, but any business that is operating in the state. And that's when business owners, entrepreneurs, civil rights groups, labor groups just said, no, no, no. That goes too far.

MARTIN: Well, the irony here is that this law was actually passed under the former governor, the Democrat, Janet Napolitano, who's currently the secretary of Homeland Security. Although I do understand that the current governor, Jan Brewer, who's a Republican, is expected to be in the court today to hear the arguments as a measure of her support. Now, it's my understanding that Arizona is arguing that this is a licensing issue, a business licensing issue. And that they say business licensing is under the purview of the state.

Ms. RODRIGUEZ: Sure. That is their argument. And they have - that argument has some merit in the sense that licensing has forever and a day in this country been the purview of the states. But what I think makes this law different and not strictly a licensing scheme, is that normally a license is issued to your barber, your hair stylist, your doctor in certain circumstances where the state says, OK, you've met minimum requirements to go forward with your business.

What this law does is after the state has issued that license, come in and said, oh, and by the way, as far as immigration law is concerned, we're adding this extra layer of requirement, which in fact, I think, you know, is closer to a law enforcement action than it is a typical traditional licensing function.

MARTIN: So the federal government is arguing that Arizona has usurped federal authority in this area.

Ms. RODRIGUEZ: Yeah.

MARTIN: So I understand that there's another interesting twist in this case. Elena Kagan, the newest justice, has recused herself. Why is that?

Ms. RODRIGUEZ: Right. Well, the reason for that is that in January, late part of 2009, early part of this year, Justice Kagan was then solicitor general Kagan and actually was part of the team of U.S. government lawyers who formulated the federal government's position in this case.

So having participated as an advocate in this case, she can't now sit as an impartial justice. So we're looking at this case being decided by eight justices, not the typical nine, and that presents its own problems.

MARTIN: Because why?

Ms. RODRIGUEZ: Well, because if they split four to four - and that's not inconceivable - it means that no matter what they decide, it will decide this particular case, but that ruling, unless you have a clear majority, will not be binding on the entire country the way it would be if it were five-four.

MARTIN: Now, it - often, these hot cases attract amicus briefs, or people who want to weigh in on either side and they want to sort of add their voice in support of either argument. Have there been any interesting amicus briefs filed in support of this - either side of this case that you want to tell us about?

Ms. RODRIGUEZ: Oh, sure. I mean, first of all, in the case in chief, it's the U.S. Chamber of Commerce challenging this law. And they are joined by a mind-boggling assortment of groups that normally hate the chamber, including the Mexican American Legal Defense and Education Fund, the ACLU. So you've got a strange bedfellows situation right there.

The amicus briefs sort of breakdown easily between supporters of the law, and you see, you know, many public interest groups that support stricter enforcement of immigration laws and those who oppose the law, including what I found to be a very interesting and compelling brief by a coalition of businesses that said if the Supreme Court allows this Arizona case to - Arizona to prevail in this case, then we're going to see a mishmash of different rules in different states that's going to make the life of, you know, businesses impossible.

MARTIN: Now, I think it's worth noting just in the minute and a half we have left that this - Arizona's campaign against illegal immigration has gotten so much attention and this law has been on the books for some time, and yet only two businesses have actually been sanctioned under this law so far.

Ms. RODRIGUEZ: Right.

MARTIN: A restaurant in Phoenix was forced to close for two days, and a water park that was already out of business was symbolically closed for 10 days. And I just wonder what you make of that. You might consider that beyond your expertise, but I am puzzled by the fact that this has gotten so much attention. And Arizona is so much of a hotbed of debate over immigration policy, and I'm just wondering why the enforcement doesn't seem to have caught up with the rhetoric. It's curious.

Ms. RODRIGUEZ: Yeah. You know, it's actually not that unusual to find issues that are hotly controversial in the abstract, and then when you implement them, it's sort of a well, so what? And this has sort of been - you know, businesses that feared for their existence have actually said, you know, it's been fairly and narrowly implemented in Arizona.

Having said that, it doesn't take away the argument that I think this case will be decided on, and that is the federal government saying even if you did a spectacular fair job, Arizona, in crafting and enforcing this law, it ain't your business. This is not your turf. So it doesn't take away sort of the abstract, legal and philosophical problems with the issue. But you're right. It's been sort of a big fizzle.

MARTIN: Eva Rodriquez is an editorial writer for the Washington Post who specializes in legal affairs. She's also a former Supreme Court reporter, and she's with us from time to time to tell us about matters before the court.

Eva, thank you so much for joining us, and Happy Holidays to you.

Ms. RODRIGUEZ: You, too. Thanks.

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