Taking on Arizona in a fight over illegal aliens policy — but not the looming fight over a recently-passed and more controversial Arizona law — the Obama Administration on Friday urged the Supreme Court to examine (and probably strike down) a state law that penalizes employers in the state for hiring workers not legally in the country.  The new brief said that, across the nation, state and local governments are passing new laws to regulate the employment of unauthorized workers, raising “important and recurring” issues of law that the Court should step in to resolve even without waiting for lower courts to reach conflicting rulings.

In a footnote, the brief mentioned Arizona’s legislation passed in late April that is at the center of an intensifying national debate over whether states, frustrated by Washington’s failure to reform immigration policy, are free to take into their own hands the problem of aliens’ illegal entry into the U.S.  That state law, among other things, orders police to stop individuals who may be in the country illegally to check their legal status.  It also imposes new penalties on illegal alien workers.  Civil rights groups have condemned it as authorizing a form of “racial profiling,” violating the rights of citizens of Hispanic descent.

The new government brief, however, said that “that legislation is not at issue in this case.”  Still, the mere mention of it illustrates that the Court is being drawn more deeply into the controversy over current policy on immigration.  The Justice Department has not yet decided whether to go to a lower federal court to block enforcement of Arizona’s latest law, although news reports this week indicated that lawyers within the Department have recommended that such a challenge be launched.

The Arizona law that is at issue in the new Department’s filing with the Justices is called the Legal Arizona Workers Act.  The U.S. Chamber of Commerce and other business groups failed in lower courts to get that law overturned as a violation of federal law on alien workers, and last July appealed to the Supreme Court (Chamber of Commerce v. Candelaria, et al., 09-115).  In November, the Court asked the U.S. Solicitor General to offer the federal government’s views on the case.  Those views were filed by Acting Solicitor General Neal K.Katyal on Friday, urging review by the Justices.

Under this state law, it is illegal for employers in Arizona to intentionally hire an unauthorized alien, and it gives county attorneys authority to enforce it, with escalating penalties for violations.  The state does not have to accept as conclusive any federal determination of a worker’s immigration status or citizenship, or any federal view on whether an employer intentionally hired an illegal alien.  Those are issues left finally to state courts to decide.  Among the ultimate penalties that the state may impose for violations are loss of any state licenses to do business in Arizona.

That law, the Solicitor General argued in Friday’s brief, is similar to laws being enacted by other states, suspending or revoking licenses as a way to penalize employers who hire unauthorized workers.  These laws, Katyal contended, “raise significant legal issues, already have generated confusion among both employers and employees, and will continue to do so absent guidance from either Congress or this Court.”

The Arizona law’s system of sanctions on employers for violations of its law, Katyal said, “disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country.”

Federal immigration law, the brief noted, bars hiring illegal aliens and sets up a comprehensive program for determining whether employers have obeyed that restriction; the program is enforced with a series of escalating penalties.  Arizona’s scheme under the law at issue, the Solicitor General contended, conflicts with that program, and does not fit within a provision Congress wrote into immigration law allowing states to enact licensing laws for businesses that operate in the state.  That licensing exemption, the brief said, was not meant to turn states free to bar the hiring of illegal aliens and to penalize those who violate the bar.

Posted in Cases in the Pipeline