PHOENIX - The nation's high court agreed Monday to review Arizona's law that punishes employers who knowingly hire illegal immigrants.
Without comment, the justices said they want to review lower-court rulings that found the law does not infringe on the exclusive right of the federal government to control immigration policy. Both a trial judge and the 9th U.S. Circuit Court of Appeals ruled that the Arizona law fits within a narrow exception to federal statutes.
Monday's decision could be the best chance for a coalition of business and civil-rights groups to strike down the law. It takes the votes of four of the nine justices just to hear a case.
Sen. Russell Pearce, the Mesa Republican who was the architect of the law, said he was "very concerned" that the court might have taken the case because of political pressure from business interests. And Pearce said he always assumed three of the justices would never see things his way.
"They don't believe in states' rights," he said. "They don't believe in the Constitution, really."
But Pearce said he remains convinced that a majority of justices, after hearing the arguments, will eventually validate the Arizona law.
The decision to take a closer look followed a legal brief filed last month by the U.S. Justice Department urging the high court to consider the lawsuit, whose plaintiffs include the Arizona Chamber of Commerce and the American Civil Liberties Union. Acting Solicitor General Neal Katyal said the Arizona law specifically runs afoul of a federal law that bars states from imposing any sort of penalties on those who employ people who are in the country illegally.
That brief took on political overtones Monday as confirmation hearings began in Washington for Elena Kagan to become the newest U.S. Supreme Court justice.
In his opening statement, Sen. Jon Kyl, R-Ariz., said he was "deeply troubled" by her decision, as the solicitor general, to urge the Supreme Court to review and strike down the Arizona law.
"I think there are legitimate questions about whether the brief authorized by Ms. Kagan, which flies in the face of the plain language of the law and urges the Supreme Court to strike these enforcement provisions down, was motivated by political influence at the White House and within the Department of Justice," Kyl said during his 10-minute statement. Kyl pointed to the unanimous 9th Circuit ruling that concluded states can punish companies by taking away their business licenses.
The decision to intercede made by the Solicitor General's Office, which is part of the Justice Department, is significant because it comes as the agency is deciding whether to challenge Arizona's law known as SB 1070. That law imposes new requirements on state and local police to check the immigration status of those stopped on other matters when there is reasonable suspicion of illegal entry to the U.S.
SB 1070, which will take effect on July 29 unless it's blocked, also makes illegal immigration a violation of state law.
Julie Pace, one of the attorneys representing business groups challenging the employer-sanctions law, said that whatever the Supreme Court decides on employer sanctions could be a clue to how the justices feel about SB 1070.
"It won't totally decide it," she said. "But it may provide hints and guidance as to how the Supreme Court views pre-emption issues in states adopting all these laws."
Central to both questions is how far states can go in dealing with issues of illegal immigration.
In this case, the 1986 federal Immigration Reform and Control Act specifically precludes states and cities from imposing any civil or criminal penalties on companies for hiring illegal immigrants. But the same law allows states to have their own "licensing or similar laws."
Using that exception, in 2007 the Arizona Legislature approved a law allowing a state judge to suspend any and all licenses and permits of any company found guilty of knowingly hiring illegal immigrants. A second violation within three years results in permanent revocation.
Lower courts said the statute fits within the exception. Challengers said the judges were misinterpreting the law.
Specifically, Pace said states can take away licenses. But she said a firm first must be found guilty of knowingly hiring illegal immigrants by a federal court or through a similar process. Pace contends state judges lack legal authority to make that decision.
Besides addressing the state's right to punish employers, the Supreme Court also is faced with the side question of whether Arizona can require employers to use the federal government's E-Verify system to check on whether a potential new employee is legally entitled to work in the United States. Federal law makes use of the system voluntary.