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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
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And I'm Guy Raz.
The Supreme Court heard arguments today in a case about immigration. The case questions the legality of an Arizona immigration law.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The Arizona law enacted in 2007 imposes harsh penalties on businesses that knowingly hire illegal workers. An alliance of business and civil rights groups challenged the law in court, contending the state statute is preempted by a longstanding federal law that makes the federal government the exclusive enforcer of immigration violations.
A caveat in the federal law left intact state licensing provisions, and the state of Arizona has interpreted that caveat broadly, enacting a statute that allows state and local prosecutors to investigate and punish companies for immigration violations.
On the steps of the Supreme Court today, Arizona Governor Jan Brewer defended the law this way.
Governor JAN BREWER (Republican, Arizona): We do issue licenses. And if we giveth, we can taketh away.
TOTENBERG: But Carter Phillips, representing the Chamber of Commerce, disagreed.
Mr. CARTER PHILLIPS (Lawyer, Chamber of Commerce): You can call this a licensing scheme if you want, but it is an enforcement scheme.
TOTENBERG: Inside the courtroom, Phillips ran into a buzz saw with that argument.
Justice Kennedy: I see no limitations on what a state can decide is a license.
Answer: It would be quite remarkable that Congress, in establishing a single federal immigration enforcement structure, would have, with a parenthetical provision, provided a shadow state enforcement mechanism.
Justice Scalia: That's because nobody would have thought the federal government would not enforce the law. Expectations change when the federal government has simply not enforced immigration restrictions.
Lawyer Phillips contended, though, that Arizona's law is not a traditional license statute because it allows the state to strip a business of the right to do business at all after the state finds a second immigration offense.
Justice Sotomayor: You don't doubt that if the federal government found someone guilty of hiring illegal aliens, the state could revoke his license to do business.
Question: So what we're talking about is the adjudication process?
Answer: Yes. Congress, in enacting the federal law, specifically said adjudication should be uniform and federal.
Justice Alito: But doesn't the exception for licensing mean enforcement won't be uniform? After all, a restaurant found guilty of hiring illegals in one state may lose its license in another.
Justice Sotomayor: But you're saying the actual adjudication of the illegal hiring has to be made by the federal government. It can't be made by the state.
Defending the Arizona law, State Solicitor General Mary O'Grady ran into a different set of questions. Justices Kennedy and Ginsburg asked why Congress would have created a regimen of fines and yet allowed the states to put companies out of business for a second hiring offense.
Justice Scalia leaped in to help O'Grady: Perhaps Congress never imagined that the federal law would not be enforced.
Justice Breyer, exasperated, said the main reason Congress created this regimen was it wanted to give employers an equal incentive to avoid hiring illegals and to avoid discriminating against people who look foreign or have accents.
Then Arizona comes along and says if you discriminate, what happens to you? Nothing. But if you hire an illegal immigrant, your business is dead.
Breyer then pointed to another provision of the Arizona law that he suggested undercuts the federal law. Under federal law, said Breyer, if the employer checks an employee's Social Security card and driver's license, he's home free. He can't be prosecuted. But under Arizona law, he's not. He has to use the federal database called E-Verify, and if he doesn't, he still can be prosecuted. That worried Breyer. As he noted, Congress refused to mandate E-Verify because the system is wrong 20 percent of the time. [POST-BROADCAST CORRECTION: The following correction ran on ALL THINGS CONSIDERED on Dec. 14, 2010: "In fact, the latest data show that E-Verify is increasingly accurate. Instead of 20 percent, its miss rate is now roughly 4 percent."]
Justice Ginsburg: The database is a federal resource. The federal government says it's voluntary. How can the state make a federal resource mandatory?
Justice Kennedy: It seems to me this is almost a classic example of the state doing something that is inconsistent with a federal requirement.
That point is important. The state's law is based on the mandatory use of E-Verify, so if the court were to strike down that portion of the law but uphold the licensing provision, the state's victory would be hollow.
Getting a clear decision on all this, however, could be problematic. The case will be decided by an eight-justice court because of Justice Kagan's recusal from this particular case. So if the court splits 4 to 4, for example, on E-Verify, the lower court judgment would automatically stand, upholding the Arizona law, at least until a full nine-member court hears one of the other cases now waiting in the wings to test the very same question.
Nina Totenberg, NPR News, Washington.
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