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.

“Most counties don’t enforce it, so it has not impacted employers much,” he said. And he believes the Supreme Court’s decision was specific to business licensing and may not be used to save SB 1070. 

Hazelton Rent Law Gets Another Look

But the ruling’s potential to increase restrictions on immigrants was quickly underscored when the high court told a federal appeals court to reconsider its ban on a Hazelton, Penn., law that fines landlords for renting to undocumented aliens. The justices said to apply the Arizona ruling. 

“The troubling thing about the Hazelton case is that it extends regulation beyond employment and takes it into landlord-tenant relations,” said Angelo A. Paparelli, a Los Angeles immigration lawyer with Seyfarth Shaw. “This is really bad from a civil rights perspective,” he said, because “people could be thrown on the street and many have American children.”

Hazelton, a town of 25,000 in northeast Pennsylvania, can’t enforce the law yet. It still faces added challenges that it is unconstitutional.

The third case before the high court last term provided benefits to immigrants. The justices allowed California to provide lower in-state college tuition rates for undocumented alien students living in California, despite a federal restriction on price breaks for the undocumented. Nine other states have also decided to circumvent the federal restriction.

Arizona Copycats

SB1070—which orders police to stop individuals who may be in the country illegally and verify their legal status— has been largely blocked from taking effect, most recently by the Ninth U.S. Circuit Court of Appeals in San Francisco. Civil rights groups have argued the law not only intrudes on federal authority over immigration law but also encourages racial profiling.

But that hasn’t stopped a handful of states from imposing homegrown versions of Arizona’s law and in some cases going further. 

“The SB1070 copycats have mostly been blocked,” said Elena Lacayo, Immigration Field Coordinator of the National Council of La Raza in Washington, D.C. “But it shows what we are heading toward,” she said of the growing state regulation of immigrants.

Perhaps the harshest state law thus far is in Alabama. It would prohibit undocumented immigrants from attending public colleges, receiving state benefits and renting homes. Police must try to verify the citizenship of anyone they stop, detain or arrest. 

In addition, it asks students to disclose if they or their parents are undocumented. Civil libertarians complain it will prompt parents to pull children out of school rather than risk disclosing their status and face arrest. One cause for hope among the law’s challenges comes from a 1982 Texas law that attempted to block school enrollment of illegal immigrants. Thirty years ago the high court said children living I the U.S., legally or not, have a right to free public education. 

Another provision of the Alabama law, prohibiting people from giving rides to undocumented immigrants, has been thrown out.

So far, legal challenges have successfully blocked the laws in Utah, Indiana and Georgia, with a new challenge expected soon against recent restrictions in South Carolina.

In Utah a package of laws require police to check immigration status of anyone arrested for a felony and creates a guest worker program in 2013 that allows undocumented workers to live and work legally in the state.

New Indiana legislation made it illegal to use identification cards issued by foreign consulates and imposed fines on employers who accept them as ID. In addition, the state gives police authority to arrest anyone who has received a notice of a removal order from a federal immigration court.

And in Georgia, the state imposed tough penalties for use of fake work documents and gave police authority to check people suspected of being in the U.S. illegally.

The latest state to enter the fray is South Carolina. In June it approved a law that not only requires employers to use the federal E-verify system to check job applicants’ citizenship status but also establishes a team of immigration police to enforce the new law.

Paparelli sees all these laws as having very damaging consequences for federal authority. “I don’t think you can have 50 state versions of immigration law without havoc,” he said.

The ACLU’s Wang said state and local officials “will continue to press the boundaries” of the Supreme Court’s decision and civil rights groups will continue to challenge those that overreach.


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