Arizona's immigration law may survive

Opponents of Arizona's draconian immigration enforcement law are hoping that federal courts will rule the measure unconstitutional, heading off a spate of "copycat" legislation elsewhere.

If only it were so simple.

In fact, a growing number of state immigration laws are being upheld by federal courts – and as improbable as it sounds – Arizona's dangerous new law could survive also.

What makes opponents so confident that laws like Arizona's are unconstitutional? It can all be summed up in a single word: "pre-emption".

That's the legal principle that appears to reserve sole authority for immigration policy to the federal government, and that "pre-empts" state laws that run counter to that authority.

But therein lies the rub.

Many states, including Arizona, aren't claiming to exercise an "inherent" state authority on immigration policy. Instead, they're claiming to be upholding existing federal law. And they're even citing past supreme court precedents – like the famous De Canas decision of 1976 – to suggest that their law-making is expressly permitted by the constitution.

In fact, Arizona passed an immigration enforcement law in 2007 that most legal observers at the time assumed would be overturned – but it wasn't. Despite legal challenges, federal courts twice upheld that law, and it remains on the books today.

What happened in 2008 is instructive. Current employer sanctions law, passed as part of the Immigration Reform and Control Act of 1986, penalises businesses that knowingly hire illegal immigrants with monetary fines. But many states are dissatisfied with the law, because the fines are nominal and because employers are not really required to verify that a worker is in the country legally.

So Arizona decided to write a law that would penalise Arizona's businesses that hired illegal workers with something far more severe – a suspension of their business licence. It also required that employers use a voluntary federal programme known as "E-Verify" to determine whether prospective workers were in the country legally.

Critics howled that Arizona had no right to pass its own employer sanctions law because the feds had "pre-empted" states from doing so. Moreover, since E-Verify was still in development, and not yet officially the law of the land, Arizona was exceeding its authority to mandate that E-Verify be used in Arizona.

But two federal courts, including the 9th circuit court of appeals, ruled that Arizona did have that right. According to the court, the 1986 IRCA law, while specifically pre-empting state laws that would fine businesses, had not extended that same authority to licensing, since, as the court noted, states, not the federal government, typically have responsibility for this area.

The 9th circuit court also defended Arizona's use of E-Verify, noting that while Congress hadn't mandated its use, "that does not, in and of itself, indicate that Congress intended to prevent states from making participation mandatory". In other words, unless Congress explicitly pre-empted it, Arizona could tailor E-Verify to suit its own needs.

The 9th circuit court precedent is not the only cause for concern. There's also a little-noticed Bush administration legal finding from 2002 that overturns past executive branch policy on the question of a state's "inherent authority" to make immigration policy. The Bush-era finding is not the law of the land, and many legal observers consider it tendentious, and indeed, at odds with the constitution.


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