A very significant ruling from the high court today on the constitutionality of Arizona’s law imposing sanctions on businesses that hire illegal aliens. This is not SB1070 signed by GOP Gov. Jan Brewer, but an earlier law passed by, ahem, then-Democrat Arizona Gov. Janet Napolitano — who, of course, now serves in an administration using the same preemption argument against SB01070 that the court just rejected in the business sanctions case.
Take heed, Arizona-bashers and Holder DOJ:
The U.S. Supreme Court on Thursday upheld an Arizona law that imposes sanctions against businesses that hire illegal immigrants.
The court, on a 5-3 vote, said federal immigration law does not bar Arizona from suspending or revoking the licenses of businesses that employ unauthorized aliens.
“Because we conclude that the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted,” Chief Justice John Roberts wrote in a 27-page opinion.
Then-Gov. Janet Napolitano signed the Arizona law in 2007, saying that while immigration is a federal responsibility, Arizona had been forced to deal with the issue because the demand for cheap, undocumented labor in the state was contributing to illegal immigration.
Numerous organizations, including the Chamber of Commerce, argued the state’s law was preempted by the federal Immigration Reform and Control Act of 1986, which forbids states from imposing sanctions for hiring illegal immigrants. But that law exempts “licensing and similar laws,” and a key issue in the case was whether Arizona’s law fell under that exemption.
The open-borders Chamber of Commerce strikes out again.
The win bolsters 1070 co-author Kris Kobach’s case that the Obama DOJ will lose on preemption.
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NLJ: How did you ensure that S.B. 1070 conforms with federal pre-emption doctrine, which is likely to be the major basis for challenging the law?
KK: The provision of the law that many have focused on is the one makes it a misdemeanor for an alien to fail to carry registration documents on his person. They fail to mention that an individual is only guilty if he is in violation of 8 USC sec 1304(a) or 8 USC 1306(e). Those provisions have been around since 1940, making it a crime to fail to register or carry certain documents. The state statue literally refers to those federal statutes. A person can only be guilty under the state statute if he is guilty under the federal statute.
The principle that protects the Arizona law is the legal principle of concurrent enforcement. This has been recognized by several courts, including the 9th Circuit. It holds that a law is not conflict-preempted if the state law prohibits the same behavior that is already prohibited by federal law. Similarly, if a state officer acts in a way to assist the federal government in that action, he concurrently enforces what is already prohibited under federal law.
That principle guides any interpretation of S.B. 1070.
The controlling Supreme Court precedent is 1976′s De Canas v. Bica. In that case, the Supreme Court recognized states may enact legislation to discourage illegal immigration within their jurisdictions. The mere fact that a state law concerns illegal immigration or affects immigration in some way does not render it pre-empted.
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