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In a ruling that could encourage states to impose their own restrictions on hiring illegal aliens, the Supreme Court on Thursday upheld an Arizona law that penalizes employers who knowingly hire unauthorized foreign workers. By a 5-3 vote, the Court ruled in Chamber of Commerce v. Whiting that federal immigration law does not pre-empt the Arizona statute. It was a significant defeat for an unusual coalition of businesses and civil rights groups that opposed the Arizona law for different reasons. As with most state-federal conflicts affecting business, the Chamber of Commerce pressed for a single federal regime on immigration instead of a patchwork of state laws, while rights groups argued the law would encourage employers to use ethnic stereotypes and discrimination to reject job applicants so as to avoid state sanctions. The Obama administration also opposed the law, asserting it disrupts the “careful balance” the federal law strikes. Chief Justice John Roberts Jr. wrote the majority opinion, ruling that Legal Arizona Workers Act, under which the state can revoke the licenses of businesses that intentionally hire illegal aliens, can live side by side with federal law. The Court also upheld a provision of the Arizona law requiring companies to use the federal E-Verify system for checking the immigration status of job applicants. Roberts based the pre-emption ruling on a clause of the federal Immigration Reform and Control Act that explicitly bars states from imposing separate criminal or civil sanctions for illegal hiring “other than through licensing or similar laws.” Arizona’s law, he said, “falls squarely” within that licensing exception and does not otherwise conflict with federal law. He noted the Arizona law tracks the federal definition of “unauthorized alien” and in other ways was crafted to be compatible with federal law. At least eight other states have similar laws that use license revocation as a way to discourage hiring of illegal aliens. “The decision will no doubt embolden anti-immigration activists to pursue their agenda beyond the Beltway,” said Temple University Beasley School of Law professor Peter Spiro. Border states and others, frustrated with inaction on the federal level to combat illegal immigration, have been eager to enact regulations tailored to their situations. The Chamber of Commerce criticized the decision for encouraging state regulation making life difficult for companies that hire in several states. “Businesses from Main Street to Wall Street are overwhelmed by a cacophony of conflicting state and local immigration legislation,” said Robin Conrad, executive vice president of the National Chamber Litigation Center. But Conrad cautioned that “the decision does not give states or local governments a blank check to pass any and every immigration law. Immigration regulation continues to be predominantly a federal concern. State and local laws that do not carefully and assiduously track federal law, or that merely masquerade as ‘licensing’ laws, would still be preempted.” Businesses will also be burdened by the decision’s endorsement of the Arizona provision requiring use of the E-verify system, says Bethany Mandell, an immigration litigator at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. It has not been made mandatory on the federal level, she said, because the database has inaccuracies and gaps. “Is it fair to make businesses use a system that has flaws?” she asked. The ruling will have an uncertain impact on another, tougher Arizona law known as SB 1070 that gives police more power to question those stopped for other reasons about their immigration status. The U.S. Court of Appeals for the 9th Circuit enjoined enforcement of that law in April, and Arizona Gov. Jan Brewer has announced she will appeal directly to the Supreme Court without seeking en banc review. Mandell said that because SB 1070 “looks more at individual rights,” the decision today may not foretell how the high court would rule. Cecillia Wang, director of the American Civil Liberties Union Immigrants’ Rights Project expressed disappointment about the ruling, but said it it was a narrow decision “that only upholds Arizona’s specific law on employment verification. The decision has nothing to do with SB 1070 or any other state or local immigration laws.” In contrast to its ruling on Arizona’s SB 1070, the 9th Circuit had upheld the Arizona licensing law. The Supreme Court, which usually looks askance at decisions by that circuit, affirmed its decision today. Roberts rejected arguments that the Arizona statute would encourage discrimination by employers. The law has provisions giving first-time offenders a break, Roberts said, ensuring that only intentional repeat offenders would lose their licenses, which critics of the law had described as a “business death penalty.” Roberts wrote, “An employer acting in good faith need have no fear of the sanctions.” Joining Roberts were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wrote a dissent voicing concern that the decision will lead employers to “erect ever stronger safeguards against the hiring of unauthorized aliens – without counterbalancing protection against unlawful discrimination.” Justice Sonia Sotomayor wrote a separate dissent, arguing that the Arizona law interferes with the federal mechanism for determining whether an employer has hired an illegal alien. She also said the Arizona requirement that employers use the federal E-Verify system imposes burdens on the federal government that Congress did not intend when it made the program voluntary. Justice Elena Kagan did not participate in the decision, because as solicitor general she was involved at earlier stages of the case last year. In another ruling on Thursday, the justices vacated part of an appellate opinion that found a Fourth Amendment violation by a police officer and a social worker who interviewed a minor about suspected child abuse without a warrant or her parents’ consent. The two officials in the consolidated cases of Camreta v. Greene and Alford v. Greene, had sought review of the constitutional issue even though the 9th Circuit also ruled they had qualified immunity from the parents’ damages suit. Justice Elena Kagan, writing for a 7-2 majority, said despite its settled practice of declining to hear appeals by prevailing parties, the Supreme Court may review a lower court’s constitutional ruling at the request of officials who won on qualified immunity grounds. Nevertheless, she added, this particular case had become moot because the child had grown up, moved out of state and would never again be subject to the challenged interviewing practices. Because mootness deprived the officials of their right to challenge the constitutional ruling, the majority vacated the Fourth Amendment part of the lower court ruling and remanded the cases. Tony Mauro can be contacted at [email protected]. Chief Washington Correspondent Marcia Coyle contributed to this report.  

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