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High Court Split During Oral Argument on Arizona Immigration Law

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by The Federalist Society
Posted December 10, 2010, 4:34 PM

Ben Conery at The Washington Times writes that the Supreme Court appeared to split along conservative-liberal lines during its hearing yesterday of the immigration law case Chamber of Commerce v. Whiting.

The case involves an Arizona law (not that Arizona law) that requires employers to access the federal database E-Verify to make sure that job applicants are authorized to work in the United States.

Business owners, unions, and libertarian groups are challenging the Arizona law, arguing that federal law, which provides for voluntary, not mandatory, use of E-Verify, preempts this provision. Justice Scalia seemed skeptical of this claim during oral arguments:

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 - I agree this step is massive and one wouldn't have expected it to occur under this statute - but expectations change when the federal government has simply not enforced the immigration restrictions.

Justice Breyer was concerned that the provision would result in discrimination against people of Hispanic descent because employers would choose not to hire them rather than risk hiring an undocumented worker:

So Arizona comes along and says: "I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead."

Justice Kagan has recused from the case because the Obama Administration opposed the Arizona law while she was Solicitor General. As Justices Kennedy, Ginsburg, Breyer, and Sotomayor expressed varying levels of concerns about the law, and Chief Justice Roberts and Justices Scalia and Alito (who appear likely to align with Justice Thomas) seemed to lean in favor of the law's constitutionality, the Court may come to a four-four split, which would mean that the 9th Circuit's decision below upholding the law would stand.

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