New America Media

PHOENIX, Ariz. — The U.S. Supreme Court could decide this month whether to hear a case on the fate of another controversial Arizona law that punishes employers who hire undocumented workers.

    Legal experts say it’s hard to predict whether the case would set a precedent for hundreds of other immigration laws being passed by other states.

    On Friday, the Obama administration filed a brief with the court that said that only the federal government could penalize employers who knowingly hire undocumented immigrants. The Arizona law, the Obama administration is arguing, is in conflict with the Immigration Reform and Control Act of 1986 (IRCA) and also lacks key protections against discrimination.

    When she was governor of Arizona, Janet Napolitano signed the Legal Arizona Workers Act (LAWA) in 2007, imposing hefty sanctions on employers, including revoking licenses of companies that knowingly hire undocumented laborers. The uproar against the law came mostly from the business community but didn’t get as much national attention as the passage of SB 1070, which was signed into law at the end of April, and would make it a state crime for a person to be an undocumented immigrant.

    This latest pronouncement by the administration comes after the Supreme Court requested that the Solicitor General weigh in on whether it is relevant to hear the case. It also happened on the heels of reports that the U.S. Department of Justice could possibly join a lawsuit against SB 1070.

    “The fact that the U.S. government is taking a position on this issue is indicative that a patchwork of laws through different states involving anything on immigration enforcement is not desirable,” said Arizona attorney and activist Daniel Ortega.

    In 2010, at least 107 laws related to immigration have been enacted in different states, according to the National Conference of State Legislatures (NCSL).

    Ortega thinks that depending on how is written, a decision on employer sanctions, could set a precedent for other challenges to state immigration laws.

    “It is highly unlikely that the Supreme Court will address the larger issue of states creating immigration policies,” said Kris Kobach, a professor of law at the University of Missouri-Kansas City.

    Kobach, who was involved in the legal defense of the law and is an advisor to controversial Maricopa County Sheriff Joe Arpaio, said the federal government’s arguments against it are weak.

            Federal law preempts any state or local law from imposing civil or criminal sanctions on businesses that knowingly employ undocumented immigrants, other than through licensing. Kobach contends that the Arizona law falls under that exception, and the Ninth U.S. Circuit Court of Appeals in San Francisco agreed with him. The Obama administration says the decision should be reversed since the Arizona law doesn’t regulate licenses for business. The Obama administration says the decision should be reversed since the Arizona law doesn’t regulate licenses for business. Rather, the administration argues, the law is being used as a way to sanction businesses.

   It remains to be seen if the court, which agrees to hear a small portion of cases every year, will take on the issue. The Supreme Court tends to hear cases when there has been a conflict of decision between other lower courts. But in this instance all of the courts have agreed that the Arizona law is not pre-empted by federal authority in this case.

   Paul Bender, a professor at the Arizona State University College of Law and expert on constitutional law, predicts the Supreme Court will agree to hear the case since it asked for an opinion from the Solicitor General.

   But he says it’s hard to say how the court would rule and how narrow the scope of the decision would be.

   It’s too soon to tell whether this could impact future challenges to SB 1070, according to Dan Pochoda, a lead attorney at the Arizona American Civil Liberties Union (ACLU) that has filed a lawsuit against it.

   “We think (SB 1070) creates an even more direct and obvious pre-emption problem than employer sanctions,” he said, clarifying that the authors of the law made it no secret that they wanted to take on the job of the federal government.

   He sees the Obama administration’s pronouncement against employer sanctions as a step in the right direction.

   “They’re showing the importance of not allowing states to start their own piecemeal intrusion in federal enforcement,” he said.

   At least five other states have similar employer sanctions laws. In Arizona, enforcement has been controversial and mostly focused on the arrest of workers who used false documents to get a job.

   The Maricopa County Sheriff’s Office is the only agency in Arizona that has enforced the employer sanctions law, conducting more than 30 worksite raids, and resulting in the arrest of 362 undocumented immigrants over the last two years. At least two companies have faced the temporary suspension of their business licenses as a result of investigations.