This past Thursday, the United States Supreme Court upheld an Arizona law which allows the state to revoke the business licenses of repeat offenders who hire undocumented workers. The case in question was Chamber of Commerce vs. Whiting. Chief Justice John Roberts wrote the majority opinion in a case decided 5-3 with Elena Kagan having recused herself. This case has been widely watched in order to possibly gauge where the Court may eventually rule on Arizona’s more controversial SB 1070. That case may come before the Court as soon as next term after it winds its way through the liberal Ninth Circuit.
This law, which was passed in 2007, is not the same as the more controversial SB-1070. It was opposed by a variety of groups including the US Chamber of Commerce, Latino rights groups and the Obama Administration. This is ironic because the law was signed into effect by then-Governor Janet Napolitano who just happens to now be Obama’s Secretary of Homeland Security. In fact, just recently in a speech billed as a major address on immigration in El Paso, Obama praised Napolitano’s efforts at stemming the tide of illegal immigration. Apparently, he either forgot about this effort when she was Governor of Arizona, or his teleprompter malfunctioned during that part.
There are three important things to take from this case. The entire “problem” starts with the definition of the word “license.” In the Immigration Reform and Control Act (IRCA) of 1986, otherwise known as the Reagan amnesty, the law specifically denies state civil or criminal penalties against employers of undocumented workers except with respect to licensing laws. This is the so-called “savings clause” that created the means for Arizona to consider the legislation in the first place. The purpose of the savings clause is that prior to IRCA, the Court had ruled in 1971 that civil and criminal state sanctions against those who employed illegal workers was permissible. This aspect of IRCA- including the savings clause- eliminated that option to states. That is, although potentially violations of state employment laws that tangentially impinged in the area of immigration, state civil and criminal court actions against employers was prohibited. The savings clause allowed states to, however, address the issue through licensing of businesses which is within state policing powers. The arguments that this amounted to a business death penalty is unfounded because it was to be applied against only the most egregious violations. Suspension of licenses and placement of provisions and conditions on licenses is clearly within a state’s licensing powers in all areas, not just immigration. In fact, in the dissenting opinions, Sotomayor and Breyer state that they doubt that Congress in 1986 would have allowed this type of law to exist under IRCA. However, it is plain from the language of the savings clause that licensing is exempt. Does it make a difference whether it is a business license or a marriage license or a dog license? A license is a license is a license. Statutory interpretation is a common means of resolution in Supreme Court cases in that it defines the ambiguities that often exists in laws. Here, the licensing authority of the states is not questioned. As was pointed out during oral argument in a hypothetical, the government and the Chamber of Commerce’s lawyers conceded that any state could revoke the license of a business if they, for example, evaded Federal tax laws. Living in New Jersey and at one time owning a liquor store, the state would not renew by state-issued liquor license until I proved payment of Federal taxes and had a valid Federal tax stamp. This is the important thing to be brought away from this ruling. Roberts essentially asserted that cooperation between the Federal and state governments is permissible in achieving a common goal, in this case decreasing illegal immigration. That is a very important concept articulated by the Supreme Court. Essentially, Roberts was saying that unless a state law ran particularly afoul of the Federal law, it was permissible. That was the case here. Of course, Congress can amend IRCA to take away that licensing sanction right of states (but highly unlikely) much like they addressed a statutory interpretation in the Ledbetter case. But, until they do, a license is a license is a license!
Secondly, looking through the dissent and most of the editorials denouncing the decision, one thing is so painfully obvious. For example, the Washington Post states: “A patchwork of state laws could also make it more difficult for businesses to operate efficiently across state lines.” An editorial in the Los Angels Times stated it “couldlead employers to not hire Latino workers.” Justice Breyer stated the same, that it couldlead to discriminatory hiring practices against Latinos. Would’ve, could’ve, should’ve… In fact, there are safeguards in the 2007 law against discrimination against anyone which is why the state also requires the use of E-Verify to determine the legality of the applicant to work in this country. The Federal government also challenged that requirement in the Arizona law citing that its use was “intended” to be voluntary. If you have an employment verification system that is fairly efficient, why make it voluntary? While there may be instances where legal workers are erroneously screened from employment (most cases involve a simple call to the Social Security office), provided there are options to challenge the findings of E-Verify, then it should be mandatory and that is where a “should” must be used.
I am firmly of the belief after researching the issue from all angles that people come to this country not to have babies or use our schools or our social welfare system and hospitals, but to seek jobs. Provided they are employed, the low wages of American employers in certain sectors of the economy far exceed the low wages in their home countries. Building walls, fences, moats with alligators, 100,000 National Guardsmen on the borders with 24/7 drone surveillance cannot overcome the economic draw of American employment. Hence, they way to attack the problem of illegal immigration across the southern border is to dry up by whatever means the labor market for cheap, illegal, undocumented labor until the Federal government gets its act together and offers up real reform that addresses this issue. Whether the solution includes a “pathway to citizenship” for those already here or temporary worker visas for low-skill labor or whatever, the Federal government needs to let the states- like Arizona who realize the ultimate solution is to cut them off from jobs through employer licensing sanctions- do the job which Obama and company do not want to do. Thankfully, at least five Supreme Court justices also realize this. It is Obama and his ilk who would rather sit on the status quo and pander to the Hispanic community for votes in 2012.
Finally, the decision also foretells how SB-1070 may eventually be decided. In all likelihood, Kagan will not be required to recuse herself from the case. If this current coalition holds, then SB 1070 would survive by a 5-4 vote. The wild card is Anthony Kennedy. Whether he votes with the majority again remains to be seen. The fact that Roberts took extreme pains to explain the history of the savings clause as it applies to a state’s power to license, and the fact he strained to make this case one exclusively of statutory interpretation gives one room for caution regarding SB 1070. In that law, licensing is not a concern. However, the fact that the majority decision intimates that a Federal-state cooperation in the enforcement of immigration laws- and there is a certain body of Supreme Court jurisprudence to back up that view- gives one concern for ultimate hope with respect to SB-1070. Most importantly, this decision reveals that the differences in how the mind of a liberal and the mind of a conservative work. Using simple definitions of the word “license” and how the law works in the very real world of employment and business, Roberts and the conservative wing of the Court prove that conservatives think in the very real, tangible world with very real, tangible results at the end of the day. The liberal would rather redefine words to their liking and live in some hypothetical world of “maybe” and “could” which delivered the immigration quagmire and problems we have today.