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Employment Law Worldview

Keeping U.S. Immigration Law Federal: “You Can See It’s Not Selling Very Well

Posted in Employment Policies, Immigration

So were the words of Supreme Court Justice Sotomayor to the Solicitor General Donald Verrilli during last week’s oral argument in Arizona v. United States,  as she challenged the government’s position that the Constitution and the doctrine of preemption prevents states from mandating their law enforcement officers to conduct immigration status checks.  Such a challenge to the government’s position, from one of the more liberal Justices, may foretell a possible outcome where the U.S. Supreme Court permits at least some of Arizona’s landmark immigration law, S.B. 1070, to take effect.

What is this case about and what does it mean for employers doing business in Arizona and other states that have adopted similar legislation?

The case arose from the State of Arizona’s appeal of an injunction blocking four parts of the immigration law.  The four provisions are summarized as follows:

  • Requiring local law enforcement to verify the immigration status in any lawful stop, detention, or arrest any time in which they have “reasonable suspicion” that someone is unlawfully present.  This  has been labeled as the “show me your papers” provision;
  • Authorizes warrantless arrests for individuals presumed (based on “reasonable suspicion” ) to have committed a deportable offense;
  • Creates a state crime for failure to carry immigration status papers at all times (this provision mirrors a longstanding but seldom enforced federal law); and
  • Creates a state criminal penalty for those found working while unlawfully present.

While reading the oral argument tea leaves is never a foolproof way to predict the likely outcome of a case before the U.S. Supreme Court, the majority of commentators and court observers seem to conclude that the first two provisions have the strongest chance to survive constitutional scrutiny.  The impact of such a holding could be significant because states such as Alabama, Georgia, South Carolina and Utah have enacted similar provisions.  Moreover, a ruling in favor of Arizona is likely to lead to further proliferation of state immigration laws.

Should the Court uphold any of the four provisions, then individuals and employers alike will be put on notice that state immigration law is here to stay.  Such an interpretation would be an extension of last year’s Supreme Court decision in Chamber of Commerce v. Whiting which permitted state enactment of laws requiring employers to register with the federal government’s web-based E-Verify program for I-9 employment authorization verification purposes.    As the well-publicized arrest of a legal foreign national auto executive in Alabama for failure to carry immigration papers demonstrated, those visiting and conducting business in multiple states will have yet another set of divergent laws to follow.