Arizona Immigration Law's Supreme Court Challenge

The Supreme Court is set to rule on the Legal Arizona Workers Act, dubbed the “business death penalty” because it penalizes businesses that “knowingly” hire illegal immigrants. Terry Greene Sterling on how it could give the Obama administration the upper hand in shaping immigration enforcement.

Sheridan Bailey is a stocky, gray-bearded 67-year-old Phoenix native who owns a steel-framing company and sees himself as a fiscal conservative and centrist. He’s an improbable activist, but in 2007, disgusted with the “growing index of racist crap” in Arizona, he launched Arizona Employers for Immigration Reform, a group of business owners who opposed a new state law that aimed to yank licenses from businesses that “knowingly” hire unauthorized immigrants.

Bailey’s group, along with the U.S. Chamber of Commerce, immigrant-rights activists, and the U.S. Department of Justice, is battling to squelch the Legal Arizona Workers Act, aka the Employer Sanctions Law, which got a constitutional airing before the U.S. Supreme Court on Dec. 8.

Dubbed the “business death penalty,” Arizona’s law allows county lawyers to take businesses to court for possible suspension or revocation of their licenses if they “knowingly” hire unauthorized workers. The law also requires state businesses to check employees through a federal database known as E-Verify.

The court hearing Wednesday centered on the constitutional issues of whether federal immigration law trumps state immigration law, despite an apparent loophole in the federal immigration code that allows the state to impose licensing sanctions. And lawyers debated whether Arizona can legally demand that all businesses use E-Verify, since the feds require only federal agencies and contractors to sign up for the database.

So far, the Employer Sanctions Law has passed constitutional muster in lower courts. The high court’s decision, expected in the next few months, will influence the direction of immigration policy in the future. If the court rules for Arizona, a rash of state immigration laws will likely be proposed. (In 2009, the National Conference of State Legislatures reports, states enacted 333 immigration laws, and in the first half of 2010, 319 such measures were enacted.) But if the Supreme Court sides with Bailey and his co-litigants, the frenzy of election-year state-immigration laws will likely subside and the feds will have the upper hand in shaping immigration enforcement. Because Justice Elena Kagan recused herself due to a conflict, Arizona needs only to tie to win the case. But in the case of a tie, no precedent is set for other immigration laws.

The employer sanctions law was sponsored by state senator Russell Pearce and signed by Gov. Janet Napolitano, now the director of the Department of Homeland Security. Napolitano reportedly counseled the Justice Department not to get involved in the case because the Obama administration needs to appear tough on immigration enforcement, according to The Los Angeles Times. (Matthew Chandler, a spokesman for DHS, said in an email that DHS declines to comment on the story, given the “pending litigation.”)

Janet Napolitano reportedly counseled the Justice Department not to get involved in the case because the administration needs to appear tough on immigration enforcement.

Arizona’s Employer Sanctions Law took effect in January 2008, and since then, the state that can no longer afford certain organ transplants for the poor has earmarked almost $7 million to enforce the law.

So far, only two businesses have been penalized—a sandwich shop was shut down for two days, and a water park company that had already stopped doing business in Arizona had its license temporarily suspended. A third company awaits prosecution.

The real targets of the law have been unauthorized immigrants employed in Maricopa County, where Sheriff Joe Arpaio has used the law to conduct dozens of investigations and raids of workplaces (like car washes) in order to round up unauthorized workers who are then charged with felony identify theft and fraud.

Arpaio’s prosecutorial ally, former Maricopa County Attorney Andrew Thomas, now faces possible disbarment stemming from an abuse-of-power ethics probe.

Arpaio himself is being investigated by the Justice Department for alleged human-rights abuses and alleged abuse of power and faces possible criminal indictment.

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Arizona’s Republican Gov. Jan Brewer, in Washington for the Supreme Court hearing, told Fox News’ Greta Van Susteren on Tuesday night that the Employer Sanctions Law was important because Arizonans want to “stop losing our jobs to the illegal immigration [sic].” The governor, who has denied reports that she is suffering from a serious illness, stumbled through her interview with Van Susteren.

Pearce, the sponsor of SB 1070, Arizona’s most recent immigration law, as well as the Employer Sanctions Law, filed an amicus brief with the Supreme Court. Others who filed amicus briefs on Arizona’s side include the conservative Eagle Forum Education and Legal Defense Fund and the Immigration Reform Law Institute, the legal arm of the Federation for Immigration Reform, which was branded as a hate group by the Southern Poverty Law Center in 2007. ( FAIR hotly disputes the label, calling it arbitrary and without foundation.)

Sheridan Bailey decided to stay in Phoenix during the Supreme Court hearing, opting to tend to the steel-frame business he’s owned since 1999. As a kid, he worked with migrants in the family peach and plum orchards west of Phoenix, and he’s deeply troubled, he says, by public policies driven by “the idea that Arizona’s survival is at stake if we don’t get rid of the illegals.”

His beloved state, he laments, in the past decade has attracted “more than its share of people with racist attitudes ranging from xenophobia to hatred.”

Bailey has taken his fight against those forces all the way to the Supreme Court, and now, he says, if he and his co-litigants lose the case, “we’ll just have to live with it.”

Terry Greene Sterling is an Arizona journalist who blogs about immigration in Phoenix at Her book, ILLEGAL, Life and Death in Arizona's Immigration War Zone, was published July 1st by the Globe Pequot Press.