Business, Civil Rights Groups Challenge Arizona Law on Undocumented Workers

Last week, the U.S. Supreme Court heard oral arguments in a case about
whether an Arizona law prohibiting employers from hiring undocumented
immigrants conflicts with federal immigration law. 

Enacted in 2007, the Legal Arizona Workers Act
sharply increases the fines and penalties against employers who hire
undocumented immigrants. The law also requires employers to verify the
immigration status of workers using an error-prone database. A federal district
court and a panel on the Ninth Circuit Court of Appeals have upheld the law.

But business groups led by the U.S. Chamber of
Commerce have challenged the law, arguing that the Legal Arizona Workers Act is
overreaching and encourages employment discrimination.  

“Congress realized in this context that if you
over-enforce in one direction, that is if you try to deter the hiring of
unauthorized workers, you run a very serious risk of causing employers to err
on the side of not hiring others who are in fact authorized but who may fall
into protected classes,” said Chamber attorney Carter Phillips during oral arguments.

The Chamber also asserted that the law, if upheld, threatens to create a patchwork quilt of laws that would impede
commerce nationwide by allowing “40,000 different localities” in each of the 50
states to set their own licensing restrictions as a means of controlling
immigration.

A group of immigrant and labor rights
organizations including Asian American Justice Center, the National Council of
La Raza, and the National Employment Law Project filed an amicus
brief expressing concern that the Arizona law
relies on the flawed E-Verify database.  “Requiring participation
in E-Verify (and failing to include anti-discrimination provisions) upsets the
careful balance struck by Congress, fundamentally altering the way Congress
sought to address discrimination and the employment of unauthorized workers,” the brief states.

Though Congress made participating in E-Verify
temporary and voluntary, the groups argue that the Arizona law makes it
mandatory and permanent. The brief cited a study that found E-Verify had an
error rate that was 30 times higher for foreign born workers than it was for
native born ones. Use of the faulty database would then be more burdensome
on non-citizens, be they naturalized or unauthorized immigrants, who tend to be
people of color, than it would be for citizens. As a result, employers may
simply seek out native born workers to avoid going through the onerous process of verifying the
immigration status of foreign born applicants or employees.

Justice Elena Kagan recused herself from the case due to her involvement in
it when she served as solicitor general. If the case results in 4-4 split
decision, the lower court ruling will still stand
(though the lower court ruling will not establish a precedent).  A
split decision may also provide a green light for other states to adopt similar
laws. Court observers are also watching this case very closely to glean
clues as to how the Court may decide a future S.B. 1070
challenge.  

The case is Chamber of Commerce of the United States v. Whiting.