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The U.S. Supreme Court heard oral arguments about Arizona’s tough new immigration law on Wednesday, and the Justices’ decision could have an impact on businesses—and their in-house counsel—far beyond illegal aliens. “It’s important for general counsel to know that the decision the Supreme Court will make is also about preemption,” said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. “Preemption” is the Constitutional principle that holds that federal laws take precedence over state laws on matters of clear national importance.   Saenz told CorpCounsel.com, “As in any preemptions case, most challenges arise in the area of business regulation. So this could potentially have an impact on the development of preemption law generally.” In other words, if Arizona is allowed to intrude on U.S. immigration law, Saenz believes there is a danger that states also might seek to move into areas of business regulation that are now the sole domain of the federal government.   Saenz’ organization and a coalition of civil rights groups have been at the forefront of challenging the Arizona law as discriminatory and unconstitutional. “It raises the serious prospect that [the law] will result in widespread, illegal racial profiling,” he said. Arizona enacted its tough “show me your papers” law two years ago, and President Barack Obama’s administration quickly challenged it in federal court. So far, lower courts have blocked four provisions in the law. While other legal challenges remain, the U.S. case went forward and is now before the Supreme Court. It deals only with the four blocked provisions. Obama’s solicitor general, Donald Verilli Jr., is representing the government; and Paul Clement, a former solicitor general and current Bancroft partner, is defending the Arizona law. One controversial provision of the law requires police, while enforcing other laws, to question a person’s immigration status if officers suspect he or she may be in the country illegally. The other three blocked provisions require all immigrants to obtain or carry immigration registration papers, make it a state criminal offense for an illegal immigrant to seek work or hold a job, and allow police to arrest suspected illegal immigrants without warrants. The government argued that the statute seeks to frustrate the discretionary judgments used in formulating immigration policy, and that it intrudes on exclusive federal authority by seeking to punish violations of federal law. For its part, Arizona argued that it is only supplementing and helping to enforce federal law, not preempting it. But the American Bar Association, for one, strongly disagrees. The ABA filed an amicus brief urging the court to permanently block the four provisions, “because implementation inevitably will conflict with federal immigration law and policy.” And the law “will result in wrongful detentions of citizens and lawfully present aliens,” the brief states. Another amicus brief opposing the law was filed on behalf of the Hill & Usher insurance company, American Subcontractors Association of Arizona, the Arizona Hispanic Chamber of Commerce, and Arizona Employers for Immigration Reform. The last group is comprised of 350 small, medium, and large businesses in the state. This brief argues in favor of sensible federal immigration reform, but doesn’t want the state interfering with interstate commerce or burdening Arizona commerce with unnecessary laws. “While none of these amici curiae [in this brief] support unfettered illegal immigration, they oppose Arizona’s immigration law as an improper exercise of state power, a threat to our national free market economy, and damaging to Arizona’s and the nation’s business reputation,” it states. Because federal preemption of state law is such a longstanding policy, Saenz predicts the Justices will uphold the lower courts and bar the four controversial provisions. “Even though the issues relate only to preemption, I think it’s impossible for the Supreme Court or anyone else to ignore that this is a critical civil rights case,” Saenz added. “The Justices won’t address that in their opinion, but they are aware of it.” A decision is expected in late June.

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