The Obama Administration late Friday urged the U.S. Supreme Court to find that Arizona’s law penalizing employers who hire illegal immigrants is preempted by federal law.
The Court asked for the views of the Office of Solicitor General last November. The case, already controversial within the nation’s business community, drew increased attention as speculation heightened that Solicitor General Elena Kagan was a leading contender to fill a potential Supreme Court vacancy. Political and academic observers viewed the government’s response as a possible window into how it would regard Arizona’s most recent law authorizing police to arrest suspected illegal immigrants as well as into Kagan’s own views.
However, Acting Solicitor General Neal Katyal, responded to the Court’s invitation. He urged the justices to hear Chamber of Commerce of the United States v. Candelaria and to reverse a ruling in March 2009 by the U.S. Court of Appeals for the 9th Circuit which upheld the controversial state law.
The Chamber of Commerce filed a petition for Supreme Court review asking the justices to answer three questions: whether the Arizona, which imposes sanctions on employers who hire unauthorized immigrants, is invalid under the federal Immigration Reform and Control Act; whether the state law, which requires all employers to participate in a federal electronic employment verification system, is preempted a federal law that specifically makes that system voluntary; and whether the law is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of immigrants.
Katyal urged the justices to answer the first question only. He noted that states and localities throughout the country have enacted—and are continuing to consider and enact—statutes and ordinances regulating the employment of unauthorized workers.
He said the employer sanctions “disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country.”
The Court’s review of the other two questions, he said, was not necessary. He explained that the E-Verify question may soon be overtaken by events because Congress would be reviewing program in 2012. In addition, he said, federal law appears to make participation voluntary and would thus bar a state law mandating participating.
The Court is expected to make a decision on whether to hear the case before it ends the current term.