The oral arguments in the Supreme Court on Wednesday in U.S. Chamber of Commerce v. Whiting were an interesting mix of tap dancing, political correctness, and duplicity. In Whiting, the Chamber of Commerce sued the state of Arizona over its 2007 Legal Arizona Workers Act, which (1) authorizes the suspension and revocation of the business license of an employer that knowingly or intentionally employs unauthorized aliens, and (2) requires all employers to use the federal E-Verify program to confirm that the people they hire are legally authorized workers.
The Chamber claims that Arizona’s law is preempted by federal immigration law, but the lower courts disagreed—even the Ninth Circuit Court of Appeals, which is the most liberal federal appeals court in the nation—upheld the law. In fact, Congress did preempt all state “civil or criminal sanctions” against employers who hire illegal aliens when it imposed federal employer sanctions in 1986 through the Immigration Reform and Control Act. However, that law has a specific exemption for state “licensing and similar laws” (8 U.S.C. 1324a (h) (2)). As Arizona Solicitor General Mary O’Grady argued, Arizona’s statute falls squarely within the “licensing and similar laws” exemption since it suspends or revokes the business license of employers violating the law.
The political correctness was exhibited by (surprise!) Justice Sonia Sotomayor, who took political correctness to new heights in her infamous “wise Latina woman” speeches. In her very first question, she started to ask the Chamber’s counsel, Carter Phillips, about the violation of federal law by the hiring of “illegal aliens,” a horrible slip of the tongue that could get her uninvited to the next hyphenated-American Happy Hour. However, she quickly stopped herself after she uttered that infamous and politically unacceptable (but legally accurate) term and changed her question to ask Phillips about the hiring of “undocumented aliens,” the term she then used for the rest of the arguments. Heaven forbid that Justice Sotomayor might offend La Raza or the Asian American Legal Defense Fund or any of the other racial entitlement and balkanization organizations that filed amicus briefs in the case.
The tap dancing and duplicity were exhibited by the Justice Department and the Chamber trying to convince the Court that the statute does not really mean what it says and that a licensing law is not really a licensing law. Phillips told Justice Scalia that Arizona’s “scheme here is not a licensing law.” Really? What else would one call a law that suspends or revokes a business license? As Justice Scalia said, “Insofar as this law limits the authority to do business with the state, it is a licensing law.” But that was a point that neither the Chamber, not the government, nor the liberal justices like Stephen Breyer or Sotomayor wanted to admit, because if they do, then Arizona’s law falls squarely within the exception promulgated by Congress.
Justice Breyer even asked Phillips if he agreed with the amicus brief filed by the SEIU on this issue. Phillips answered that “the SEIU brief does a very nice job” of explaining it. It doesn’t, but then it should be a sign to the Chamber that it is on the wrong side of an issue when it is agreeing with the SEIU. Instead, the Chamber (with whose positions I usually agree) is trying to protect employers who intentionally and knowingly violate our federal immigration laws by hiring illegal aliens—oops, make that “undocumented workers.”
Watching Neal Katyal, the Acting Solicitor General, argue on behalf of the government was almost painful. Because of the Obama Administration’s policy against enforcement of our immigration laws, Katyal was put in the position of making specious arguments that are a misinterpretation of the applicable law. He actually told Chief Justice John Roberts that traditional licensing laws in 1986 (when the federal immigration law was passed) “were largely farm labor contractor laws,” a ridiculous assertion that the Chief Justice quickly called him on when he pointed out businesses have to comply with licensing laws “pretty much across the board.”
Katyal then made the equally absurd argument that a law that allows revocation of your license is “not a licensing law.” Of course, that assertion put him in a very awkward position. Justice Roberts asked whether the government was saying that if Arizona discovered that a lot of employers were employing child labor, it could not revoke their business license. That was the obvious logical outcome of Katyal’s claims, and he did his best to avoid answering the Chief Justice’s hypothetical. It would obviously be a public relations disaster if the Solicitor General argued that a state cannot pull the business license of an employer using child labor.
As he usually does in his well-known pithy style, Justice Antonin Scalia encapsulated the problem faced by Arizona that led to this law: “Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration. And therefore, they had to take this very massive” step, which is predicated on the fact that “the federal government has simply not enforced the immigration restrictions.”
The Chamber also claimed that the Arizona law was unfair because “it is never 100 percent clear precisely who is and who is not an authorized worker.” Gosh, if only there were a system that employers could rely on to help them make that determination. Wait a minute—there is such a system. It is called E-Verify. But then the Chamber and the government are also claiming that the second part of the Arizona statute, which requires employers to use the E-Verify system, somehow interferes with federal immigration enforcement because the E-Verify system is voluntary under federal law.
That argument is just as ridiculous as the other claims made by the Chamber and the government. The whole purpose of the E-Verify program that was promulgated and funded by Congress was to give employers a quicker, easier system for meeting the work authorization requirements of federal law. By mandating its use, Arizona is simply complementing and enhancing federal enforcement of immigration laws, something that is obviously anathema to this Administration.
Unfortunately, Justice Kennedy’s questions seemed to indicate that he was giving some credence to the specious arguments being made by the plaintiffs. And there is no doubt how Justices Ruth Bader Ginsburg, Breyer, and Sotomayor will vote, given their past history of bending, breaking, and twisting the law to suit their liberal ideological views of public policy.
Fortunately however, Justice Elena Kagan is recused from this case. So even if Justice Anthony Kennedy swings to the left as he does far too often, a four-to-four split vote by the Supreme Court would allow the Ninth Circuit decision upholding Arizona’s law to stand. That would be a victory for the rule of law and for enforcement of our immigration requirements.