Business, Civil Rights Groups Challenge Arizona Law on Undocumented Workers

December 17, 2010 - Posted by The Leadership Conference

Last week, the U.S. Supreme Court heard oral arguments in a case about whether an Arizona law prohibiting employers from hiring undocumented immigrants conflicts with federal immigration law.

Enacted in 2007, the Legal Arizona Workers Act sharply increases the fines and penalties against employers who hire undocumented immigrants. The law also requires employers to verify the immigration status of workers using an error-prone database. A federal district court and a panel on the Ninth Circuit Court of Appeals have upheld the law.

But business groups led by the U.S. Chamber of Commerce have challenged the law, arguing that the Legal Arizona Workers Act is overreaching and encourages employment discrimination.

"Congress realized in this context that if you over-enforce in one direction, that is if you try to deter the hiring of unauthorized workers, you run a very serious risk of causing employers to err on the side of not hiring others who are in fact authorized but who may fall into protected classes," said Chamber attorney Carter Phillips during oral arguments.

The Chamber also asserted that the law, if upheld, threatens to create a patchwork quilt of laws that would impede commerce nationwide by allowing "40,000 different localities" in each of the 50 states to set their own licensing restrictions as a means of controlling immigration.

A group of immigrant and labor rights organizations including Asian American Justice Center, the National Council of La Raza, and the National Employment Law Project filed an amicus brief expressing concern that the Arizona law relies on the flawed E-Verify database. "Requiring participation in E-Verify (and failing to include anti-discrimination provisions) upsets the careful balance struck by Congress, fundamentally altering the way Congress sought to address discrimination and the employment of unauthorized workers," the brief states.

Though Congress made participating in E-Verify temporary and voluntary, the groups argue that the Arizona law makes it mandatory and permanent. The brief cited a study that found E-Verify had an error rate that was 30 times higher for foreign born workers than it was for native born ones. Use of the faulty database would then be more burdensome on non-citizens, be they naturalized or unauthorized immigrants, who tend to be people of color, than it would be for citizens. As a result, employers may simply seek out native born workers to avoid going through the onerous process of verifying the immigration status of foreign born applicants or employees.

Justice Elena Kagan recused herself from the case due to her involvement in it when she served as solicitor general. If the case results in 4-4 split decision, the lower court ruling will still stand (though the lower court ruling will not establish a precedent). A split decision may also provide a green light for other states to adopt similar laws. Court observers are also watching this case very closely to glean clues as to how the Court may decide a future S.B. 1070 challenge.

The case is Chamber of Commerce of the United States v. Whiting.