When the Supreme Court Resumes on Monday, Will Immigration Legislation be Front and Center?

 As the U.S. Supreme Court begins its new term on Monday, immigration is likely to be one of the most significant issues it tackles, with Arizona’s draconian SB 1070 front and center. 

The law’s supporters have asked the justices to review the legislation, which went into partial effect last year after an Arizona federal judge ruled that major parts of it were unconstitutional.

Raising the stakes for the high court is a Sept. 28 decision by an Alabama judge upholding much of that state’s new immigration law, which is even more restrictive than SB 1070. 

With the ruling, key provisions of the Alabama law—including the requirement that police check the status of people who might be undocumented immigrants, even during routine stops, and that businesses and schools verify the status of workers and students—that took effect Sept. 29. 

At issue in these and other recent cases is the extent to which states and local governments will be allowed to determine how to restrict immigrants within their jurisdiction. The Supreme Court hinted strongly last term that it is open to local experiments regulating immigration, once considered the sole realm of the federal government. 

This gives hope to supporters of laws like SB1070 and Alabama’s HB56 that seek to drastically curtail the rights of undocumented immigrants to live, work, go to school, and received other public services in their jurisdictions. 

But this expansion of state and local authority could also give immigrant-friendly areas leeway to continue providing benefits to undocumented residents, as happened in a California case on in-state college tuition. 

Major Arizona Ruling on E-Verify

The Supreme Court’s renewed focus on immigration began with three cases last term—a major Arizona ruling in May and two orders affecting the city of Hazelton, Penn., and California public colleges and universities. 

In the Arizona decision, the high court upheld a law that punishes employers who knowingly hire undocumented workers. The state law would revoke business licenses for repeat offenders. It also mandates employers check an applicant’s status on a federal database known as E-verify. The federal government, by contrast, has considered use of E-verify voluntary for employers.

The U.S. Chamber of Commerce, representing businesses, joined forces with the American Civil Liberties Union, the Mexican American Legal Defense and Education Fund, National Immigration Law Center and other civil rights groups in unsuccessfully challenging the Arizona law. Chamber Sr. Vice President on Immigration Randal Johnson said businesses feared “we could wind up with 50 different state laws without knowing how to verify employees.”

Shortly after the ruling, the U.S. Chamber reached a compromise with Texas Republican Congressman Lamar Smith to support a controversial bill to make employer use of E-verify mandatory in all 50 states. A battle over mandatory E-verify is likely this fall in Congress, as the “Legal Workforce Act” (H.R. 2885)

The Arizona law does not intrude on federal control of immigration because it is strictly limited to state licensing power, the Supreme Court majority said. 

Cecillia Wang, director of the Immigration Project of the ACLU in San Francisco, called the Arizona decision “very limited” and directed at Arizona’s licensing law. “It is not carte blanche to regulate the employment of immigrants,” she said. 

Daniel Pochoda, the legal director of the ACLU of Arizona, said they have been living with the job verification law for a few years and so far it has not been widely enforced.