Analysis
A divided Supreme Court on Thursday sent a strong signal that states will be free to experiment with new laws dealing with unlawful aliens living within their borders, at least when the states seek to control access to jobs. The usual argument that immigration policy has to be uniform, across the nation, would appear to have a significant loophole. Whether the new 5-3 ruling upholding the less controversial of Arizona’s recent legislative attack on immigrants will actually reach further than jobs, affecting other state and local initiatives, is likely to depend upon how the Justices react to cases already on their docket or soon to arrive.
Arizona’s legislature and other state leaders have been in the forefront of a spreading effort — among states, as well as some local governments — to crack down more severely on aliens who are illegally in the U.S., especially in the wake of Congress’s unwillingness or inability to adopt new federal controls. Those outside-of-Washington efforts proved successful legally in the decision just issued in Chamber of Commerce, et al.., v. Whiting, et al. (docket 09-115).
The decision technically did not go beyond the specific Arizona law at issue but, between the lines, seemed to have some broader themes.  There was even a hint that Arizona’s more controversial alien control law — now widely known as “S.B. 1070” — may not fare as well as its worker control law now has, particularly its provision that gives police wide authority to arrest and detain any individual that an officer believes is an unlawful alien. Arizona is preparing to file a new appeal, probably during the summer, to try to revive S.B. 1070 after key provisions were blocked in April by the Ninth Circuit Court.
The Court majority on Thursday — 5-3 on the main points, 4-3 on less significant points — rejected claims by business and civil rights groups that Arizona’s four-year-old Legal Arizona Workers Act intrudes upon federal immigration policy on aliens’ employment. In legal terminology, the Court ruled that federal law did not expressly or by implication “preempt” the state statute.  Not the least significant of the Court’s declarations was a resuscitation of a 1976 precedent, DeCanas v. Bica, speaking broadly of a federal-state partnership on restricting aliens’ jobs. But that ruling came down ten years before Congress passed a sweeping new law that generally pushed aside state efforts, except for what had seemed since then to be a fairly narrowly worded exception.
The provision, centrally involved in the new decision, barred states and local governments from enforcing “any law” that imposed punishment on those who hired unlawful aliens, but it made an exception for punishment imposed by “licensing and similar laws.”
On Thursday, however, the Court majority read that “licensing” exception generously, finding that Arizona’s 2007 law imposing more onerous penalties than federal law does for hiring unlawful aliens “fall[s] squarely” within that opening. That, in fact, was the main disagreement between the majority, led by Chief Justice John G. Roberts, Jr., and the three dissenting Justices. (Justice Elena Kagan, who in her former role as U.S. Solicitor General had some role earlier in the case, did not take part.) The Court split along the same numerical lines in allowing Arizona to make mandatory an optional federal system for identifying who among aliens is eligible to be hired.
The difference in tone was vivid between the Roberts majority opinion and the dissenting opinions written by Justice Stephen G. Breyer (joined by Justice Ruth Bader Ginsburg) and by Justice Sonia Sotomayor.
Roberts accepted every argument that the state of Arizona had made, about how narrow in scope its initiative was, about how it closely tracked the objectives of the 1986 federal law, about how it would in no way disrupt federal controls, and about how the federal government could adapt its own enforcement duties to accommodate new cooperative efforts it would have to take to help Arizona enforce its law. Both the Breyer and Sotomayor opinions interpreted the state law as reaching well beyond the scope of federal controls, in ways that would actively frustrate federal efforts and compromise the need for uniformity in dealing with unlawful aliens.
The Chief Justice, responding to the complaints of business and civil rights groups (and of the dissenting Justices) about the supposed sweep of Arizona’s law, wrote that “Arizona has taken the route least likely to cause tension with federal law.” After summarizing the perceived narrowness of what the state had done, the main opinion commented: “If even this gives rise to impermissible conflicts with federal law, then there really is no way for the state to implement licensing sanctions, contrary to the express terms of the savings clause” — that is, the clause providing a licensing exemption to general preemption of state worker laws.
Justice Breyer noted that broad preemption language in a federal law, like that he quoted from the 1986 immigration statute, ordinarily shows Congress’s interest in preventing states from enacting laws “that might interfere with” the objectives Congress had in mind. But the Chief Justice’s reading of the exception to that language, Breyer argued, “does the opposite. It facilitates the creation of obstacles to the accomplishment and execution of the full purposes and objectives of Congress.”
Justice Sotomayor said the majority had turned states loose to “determine for themselves whether someone has employed an unauthorized alien so long as they so so in conjunction with licensing sanctions.” That reading of the exception, she said, “cannot be reconciled” with the rest of what Congress enacted in 1986. “Congress could not plausibly have intended,” she added, “for the saving clause to operate in the way the majority reads it to do.” She would have restricted that clause to permitting states to impose sanctions on businesses, only after federal officials had determined that a specific alien had been hired illegally.
The Roberts opinion had the full support of Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Antonin Scalia, and the support of Justice Clarence Thomas for the two key rulings — finding that Arizona’s controls on alien workers and that its mandatory requirement of using a federal alien-status system were not displaced by federal law. Even on the points on which Justice Thomas declined to join the Roberts opinion, there was a 4-3 majority making those sections, too, binding law.
The Whiting case had been closely followed since it was first filed at the Court in July 2009, partly for what it might show about the Court’s views on states’ new efforts to deal with work opportunities for aliens, but also more particularly for what it might at least hint about Arizona’s hotly disputed S.B. 1070, a wider ranging attempt to restrict the activity of undocumented immigrants living in that state.
S.B. 1070 sought to impose added controls on aliens in the workplace. But even more controversially, it allowed police to arrest and detain any individual the officer thought to be an unlawful alien, made it a crime for an alien to even be in the state without legal immigration papers, and allowed police to arrest without a warrant anyone they believed to have committed a crime that could lead to deportation. All of those provisions have been temporarily blocked by the Ninth Circuit, and that ruling is the one that the state plans to challenge in a forthcoming appeal, due at the Court by no later than July 11, according to state officials’ timetable.
There was no mention of S.B. 1070 in Thursday’s opinion. Any reference to state laws other than the Arizona statute upheld was to worker control laws passed in 12 other states, all predating the 1986 federal immigration law.
It is far from clear that the same majority that assembled Thursday would come together in a decision on S.B. 1070. The controversy over that law raises preemption issues, of course, but it also raises issued about potential racial discrimination based upon police actions aimed at people who “look like” aliens. If the case over S.B. 1070 should turn, in some ways, upon the question of bias through “racial profiling,” that might raise issues about violation of federal workplace anti-discrimination laws.  The Chief Justice’s opinion mentioned those anti-bias laws Thursday, suggesting that they could be invoked against employers who, trying to avoid violating the Arizona worker control law, simply refused to hire anyone they thought might be an unlawful alien, just to be on the safe side.
Even before Arizona’s appeal on S.B. 1070 reaches the Court, the Justices now have on their docket two cases that might provide hints, when the Justices react to them, about how the Court feels about other issues of immigration policy in the wake of Whiting. One is an appeal in a California case testing whether states may legally give unlawful alien students a break on their tuition at state colleges and universities, and the other is an appeal by the city of Hazleton, Pa., seeking to revive a broad alien control law that deals not only with jobs, but also with housing opportunities — a law that cannot now be enforced, under a Third Circuit Court ruling.
The Justices were scheduled to consider at their Thursday private Conference the California tuition case (Martinez v. University of California Regents, docket 10-1029). The case was taken to the Court by students attending college in California but having their homes outside the state, and who thus have been obliged to pay non-resident tuition — which can be more than three times higher than in-state tuition. The issue in that case is whether two federal laws bar states from giving unlawful aliens living in the state the benefit of in-state tuition rates, unless all non-residents students attending college there get the lower tuition. At issue is a 2001 California law that provides that an unlawful alien student qualifies for in-state tuition at state colleges or universities if he or she attended high school in California for three or more years, graduated from a California high school, and filed a sworn promise to seek legal status as soon as eligible to do so.  The California Supreme Court ruled that the provision was not preempted by federal laws.
The Court could act as soon as next Tuesday on that case.
The Court apparently has been holding the Hazleton, Pa., appeal until it decided the Whiting case. That case (Hazleton v. Lozano, et al., docket 10-772) involves a series of local city ordinances, enacted beginning in 2006, that seek to regulate both employment and access to housing for unlawful aliens living in the city. The measures, among the first by a local jurisdiction, were apparently prompted by an influx of Latino families in Hazleton, arriving mainly from New York and New Jersey in the early 2000s.  The Third Circuit has upheld injunctions against enforcing the ordinances.
That case was scheduled for consideration by the Justices at their Conference on March 18, but no action on it was taken at that time or since. It thus is likely to be put before one of the Justices’ Conferences in June, now that the Whiting decision has come down.
Those cases, like Whiting, turn on issues of alleged conflict between federal law and state or local government actions, but like the dispute over Arizona’s S.B. 170, the issues in each of the pending cases go beyond what was at stake in Whiting.
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