Justices OK Arizona's employer sanctions

In a 5-3 decision, the justices rejected arguments by the business community, Hispanic-rights organizations and the Obama administration that Arizona's 2007 employer-sanctions law infringes on the exclusive right of the federal government to regulate immigration.

"We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly pre-empted," Chief Justice John Roberts wrote for the majority.

The law, formally known as the Legal Arizona Worker Act, allows a state judge to suspend all business licenses of any firm found guilty of knowingly hiring illegal immigrants. A second offense within three years puts the company out of business.

Critics say it conflicts with the federal Immigration Reform and Control Act approved by Congress in 1986, which precludes states and cities from imposing any civil or criminal penalties on companies for hiring illegal immigrants.

But the same law does allow states to have their own "licensing or similar laws." It was that exception that Senate President Russell Pearce, R-Mesa, said he used to craft the Arizona statute.

Foes pointed out that the Arizona law affects not only traditional business licenses but also includes articles of incorporation. In his dissent, Justice Stephen Breyer agreed, saying the whole concept of what licenses can be suspended is too broad.

"Why not a dog-licensing law?" he asked.

Roberts retorted that the Arizona law limits the scope of its penalties to those licenses issued "for the purpose of operating a business."

Anyway, the chief justice said, Congress put that exception in the law for a reason.

"It makes little sense to preserve state authority to impose sanctions through licensing but not allow states to revoke licenses when appropriate as one of those sanctions," he wrote.

Attorneys for business groups said that, even if the state can suspend or revoke a license, it cannot be done based on the findings of a state judge. Instead, they argued, a company first must be found guilty of knowingly hiring an illegal immigrant by a federal judge or tribunal.

Roberts disagreed, saying, "Such a requirement is found nowhere in the text" of the federal law and its exception.

Breyer worried openly whether employers, faced with the possibility of being put out of business, will err on the side of not hiring anyone who even looks like he or she could be an illegal immigrant.

"Either directly, or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens - without counterbalancing protection against unlawful discrimination," he wrote.

But Roberts pointed out that license suspensions and terminations cannot be imposed for simply hiring an illegal immigrant. "The Arizona law covers only knowing or intentional violations," with permanent loss of the ability to do business only after a second conviction, he wrote.

"An employer acting in good faith need have no fear of the sanctions," Roberts wrote. And he said there are state and federal laws that prohibit discrimination.

The justices also upheld a requirement for companies to use the federal E-Verify system to determine whether new employees are legally entitled to work here. Roberts said nothing in that requirement conflicts with federal laws.

He also pointed out that the state imposes no punishment on employers who do not make the checks. What they lose, however, is the ability to claim in court that the use of E-Verify is a defense against charges they knowingly broke the law.

Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, said that while he is disappointed in Thursday's ruling, he does not expect it to have much immediate effect on employers.

Prosecutions thus far have been very limited, he said, and the language used by Roberts in the majority opinion about having to show a knowing or intentional violation gives him some hope.

"For companies that are playing by the rules and using E-Verify in good faith, there's virtually no risk that they will be captured by the Arizona employer-sanctions law," he said.

The Tucson Metropolitan Chamber of Commerce doesn't disagree with the intent of the law, CEO Mike Varney said, but the group still doesn't like it.

"We're a business organization, and we just don't see immigration enforcement as something that businesses should be saddled with," he said.

The chamber, which represents more than 1,400 businesses, also worries about a business owner getting in trouble if a worker passes through the E-Verify program and is later determined to be here illegally.

Jerry Cobb, spokesman for the Maricopa County Attorney's Office, said two firms in Phoenix have been successfully prosecuted. Both were forced to close their doors for several days.

There have been no prosecutions in Southeastern Arizona, and only a small number of complaints have been filed.

The Pima County Attorney's Office has investigated nine complaints but has not been able to prove an employer knowingly hired an illegal worker, which is required, said Daniel Jurkowitz, deputy Pima County attorney.

Santa Cruz County, which has received two complaints, and Pinal County, which has gotten five, made similar reports. Cochise County has not received any complaints.

Julie Pace, an attorney who represented the chamber and other business groups, said the real effect of Thursday's ruling is that it gives the green light to the other 49 states to follow suit and enact similar laws.

Officials from the U.S. Department of Justice, which asked the high court to void the Arizona law, did not immediately return calls.

Pearce, in a prepared statement, called the ruling "a huge victory for America and the American worker," and "a defeat for the open-borders, profits-over-patriotism crowd."

Gov. Jan Brewer, who was secretary of state when the law was approved, praised the ruling, saying the law "allows the vast majority of businesses that want to play by the rules to comply with federal and state laws against hiring illegal aliens."

Justices Sonia Sotomayor and Ruth Bader Ginsburg also dissented.

The newest justice, Elena Kagan, did not take part in the decision because she had been the solicitor general in the Obama administration when its objections were filed. But even if she had sided with the dissent, that would not have changed the outcome.

E-Verify

The law requires Arizona employers to run potential employees through the federal E-Verify program to determine legal status. The number of companies enrolled in the program has doubled since the law was passed in July 2007, but the total still accounts for only about one-third of the 100,000 employers in the state.

There are 36,769 employers enrolled in the program, up from 18,800 in July 2007, according to information from U.S. Citizenship and Immigration Services.

The enrolled employers have a combined 72,202 work sites around the state. Since Oct. 1, more than 584,600 queries have been run through E-Verify in Arizona.

Star reporter Brady McCombs contributed to this story.