Top Court Upholds Arizona Employer Sanctions Law

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The U.S. Supreme Court has upheld an Arizona law that would allow the state to penalize businesses that hire illegal immigrants. NPR's Nina Totenberg tells Robert Siegel about the opinion.


From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.


And I'm Robert Siegel.

The Supreme Court has upheld an Arizona law that allows the state to shut down businesses that hire workers who are in the country illegally. The five-to-three decision gives states far more power to enact measures aimed at controlling the influx of illegal immigrants. And joining us now to talk about this is NPR legal affairs correspondent Nina Totenberg.



SIEGEL: And first, this is not the big and very controversial Arizona law that was passed last year, right?

TOTENBERG: No. That law, much of which has been struck down by the lower courts, requires law enforcement personnel to check up on the status of any individual they think on the street is illegally in the country and it says, you know, give me your papers, that kind of thing. In contrast, this law was upheld by the lower courts, and it imposes harsh penalties on businesses that knowingly hire illegal workers.

This law was and is very controversial because it basically does two things, both of which drive huge loopholes through the longstanding federal immigration statute, which Congress enacted to get rid of the patchwork of state immigration schemes.

SIEGEL: And what are the two things that it does?

TOTENBERG: Well, the federal law makes the federal government the exclusive enforcer of immigration violations, but there's a caveat: exempting state licensing provisions. And Arizona defines licensing to include virtually all business permits. And under state law, if an employer knowingly hires an illegal worker, the business can be fined for the first offense, and a second offense can mean you lose the right to do business at all in the state.

SIEGEL: But how can the state show that a business not only hired an illegal worker but knowingly hired an illegal worker?

TOTENBERG: Ha. That's the second provision of the law. It makes it mandatory for employers to use the federal government's E-verify system. Now, E-verify is a sort of a pilot computer-data-check system that Congress specifically made voluntary because about one out of five workers is erroneously reported as illegal because of mistaken name spellings, similar names, things like that.

SIEGEL: OK. This law was upheld by five justices. Supreme Court Chief Justice John Roberts wrote the opinion. All of the justices who voted with him are Republicans, yes?

TOTENBERG: All Republican appointees.

SIEGEL: And the reasoning?

TOTENBERG: Well, first, as to the licensing provision, he said basically that Congress put the licensing caveat in the law and that a license to do business is a license to do business. In other words, that the law, on its face, allows the state to shut down businesses that twice knowingly employ an illegal worker.

An employer who uses the E-verify system, he noted, has an affirmative defense, essentially proof that he did not knowingly employ an illegal worker.

SIEGEL: Well, how did the court get around the problem that, as you say, the federal government made E-verify a voluntary program but the state law makes it mandatory?

TOTENBERG: Chief Justice Roberts said that since Congress barred the secretary of Homeland Security from making the program mandatory, the statute limits what the secretary can do - nothing more. Arizona can make the federal program mandatory, he said, because the state is not the secretary of Homeland Security.

SIEGEL: Nina, the case was brought by a powerful coalition - chamber of commerce, civil rights groups. What would you expect to happen right now?

TOTENBERG: I think they're going to go to Congress. They're really scared of this. I talked, for example, to Carter Phillips, who represents the chamber, and who painted the following picture for me: Sheriff Joe runs amok, starts raiding the small businesses in a mall. You're down the street. You're not going to hire someone with an accent or who looks Hispanic.

And then if you don't, then you get slammed on the other side by civil suits for discrimination. That's why they hated this law so much, and that's why I suspect they're going to go to Congress to try to fix this.

SIEGEL: OK. Thank you, Nina.

TOTENBERG: Thank you, Robert.

SIEGEL: NPR legal affairs correspondent Nina Totenberg.

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