Arizona seemed headed for victory in the U.S. Supreme Court after the justices heard a challenge Wednesday to the state's law providing harsh penalties for businesses that knowingly hire illegal immigrants.
If the state does carry the day, the absence of Justice Elena Kagan -- who recused herself from hearing the case -- may be the key factor. Based on the oral argument in the courtroom, the legal battle seemed likely to result in a 4-4 tie, with the court's liberal and conservative justices evenly divided. Had Kagan participated, she might have tipped the balance, and Arizona might have lost. But a tie vote would leave the lower court ruling, which favored Arizona, undisturbed.
Kagan has declined to sit in on cases which her office handled when she was solicitor general at the Justice Department. The federal government filed briefs opposing the state.
This was not the showdown over Arizona's controversial law requiring police to detain suspected illegal aliens -- the case which is now on appeal and has not yet reached the Supreme Court. Instead, the justices today heard a challenge to a law passed three years ago that gives the state authority to revoke a company's license to do business if it knowingly hires illegal workers. Opponents call that sanction as "the death penalty for business."
The U.S. Chamber of Commerce and other business groups claim the Arizona statute is preempted by federal immigration law, which sets out the procedures employers must follow to verify a job applicant's legal status and the punishments for knowingly hiring illegal immigrants. The federal law says it preempts any state or local laws that impose punishments "other than through licensing or similar laws."
Arizona's law gives the state the power to revoke a business license for employees who fail to use the federal database, a system known as E-Verify, and knowingly hire illegal workers.
"This is not a licensing law. This is a worker authorization sanctioning law," said Carter Phillips, a D.C. lawyer representing the Chamber of Commerce.
But Justice Antonin Scalia, whose comments seemed most forcefully to support the state, said Arizona was forced into adopting its own system because the federal government has failed to adequately police the hiring of illegal workers.
"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," he said.