ASU Professor Paul Bender discusses today’s Supreme Court opinion upholding Arizona’s employer sanctions law.
Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. A big victory today for the supporters of Arizona's employer sanctions law. The U.S. Supreme Court upheld the law by a 5-3 vote. Here to tell us what the court said is ASU law professor Paul Bender. Ted Simons: Thanks for joining us.
Paul Bender: Good to see you, Ted.
Ted Simons: Was it a surprise?
Paul Bender: No, it wasn't a surprise. It's a hard case, most thought. And people who saw the oral argument had the sense that the court was going to go this way. Especially justice Kennedy suggested that he was going on this side. It's wrong though.
Ted Simons: Well, we can go that direction. But let's get the issue first.
Paul Bender: The issue is a very narrow issue, quite different from 1070, for example. The issue is when congress made it a federal offense to hire a illegal immigrant, it stopped the states from doing the same thing. It stopped -- it preempted the states, from imposing criminal or civil sanctions on those who employ or refer for a fee unauthorized aliens. If that all was in the statute, the Arizona statute would be unconstitutional. Because it is a sanction on people who employ. So in general, congress wanted to say, we the federal government are going to do this. We don't want the states generally imposing sanctions but they put in statutes an exception. That's what is involved. It says you can't impose civil or criminal sanctions other than through licensing and similar laws, so the question is what does that licensing and similar laws mean. Does the Arizona statute come within that. The court says it's a license law so comes within the state statute. The reason I think it's wrong, that makes no sense. Why would congress say to a state, you can't impose a $100 fine on somebody who hires an illegal immigrant, but you can force them to close their business and prohibit them from ever doing business in your state again. That doesn't make any sense. Generally stopping states from imposing sanctions, taking away a business license is an enormous sanction. But they just use the word licensing, it's true. That's why it's a hard case. But you should think about it not in terms of the dictionary definition of licensing, but what was congress was trying to do? Congress was trying to stop the states from enforcing a prohibition on people hiring illegal immigrants. Why? Because congress was afraid if states felt free to do that a lot of employers would not feel free to hire people who looked like they would be illegal. And result in ethnic and racial discrimination.
Ted Simons: Back to congress putting that exception in the law. Why did they put that in there if they didn't want something similar?
Paul Bender: The dissents in that case -- they have two explanations. Justice Soto mayor dissent says, what they meant, if the federal government accusses an employer of hiring an illegal immigrant and convicts them or imposes a penalty, then the state can take away their license but they have to wait until there's a federal determination. That the person violated the statute. She thinks that's what it means and there's something in the legislative history that says that and that seems to be a plausible reason. And that seems to me to be plausible. The other thing they might have been thinking of, hey, if the state is given licenses to people to be lawyers and doctors they can refuse to give you a license for a lawyer because you're an illegal immigrant. That is they meant real licensing proceeding in the sense that the question, this isn't when business apply for a license. This is taking away a license. It's not a licensing thing, it's a penalty thing. So I think probably the court meant the latter. They wanted to let states deny people licenses because they were illegal to do things like be a doctor or taxi driver.
Ted Simons: Much is speculated this would be some sort of precursor, some sort of harbinger, a hint of what the court would do with S.B. 1070, do you agree?
Paul Bender: I find very little in here that's going to help you -- help you guess what's going to happen in 1070 if they take the case, because this is so narrow. This is about what does the word license mean in the statute. 1070 doesn't have a preemption statute. 1070's question is the state program inconsistent with the federal general administration of immigration laws and there's a lot of stuff in this opinion which suggests the majority would think 1070 was different. Chief justice Roberts went out of his way in upholding the statute to say, saying this statute doesn't let the states make their own decisions how to enforce this. They're really under the supervision of the federal government. That's not true of 1070. And so that may be in there in order to prepare for a distinction with 1070, you can't tell.
Ted Simons: And I was going to ask that, the narrow exception you were talking about. If you're looking at it 'with that fine tooth of a comb, that narrow exception, maybe for 1070 they'll look at narrow definitions and such.
Paul Bender: But in 1070, you can't do it by narrow definitions. In 1070 the question is are you going to let state police, city police decide to detain and hold people because they think they're illegal? And there, the question is well, will that interfere with the way the federal government wants to enforce immigration laws. That wasn't a problem here, because here nothing as bad is going to happen -- let me put it this way. One of the reasons why the ninth circuit held 1070 unconstitutional it, might cause foreign policy problems if state's sheriffs detained foreigners who were, in fact, not illegal. That can't happen here. Because here, the penalty is not on the illegal immigrant. It's on the business, and the business is American businesses, so this isn't going to stir up the kind of possible foreign policy issues that 1070 would. And 1070 leaves the police and the state prosecutors much freer to make decision about who is to detain and prosecute than this does and since the court went out of its way to say is that that the states not absolutely free, they have to do the what federal government tells them, it suggests -- on the other hand, since the courts split with the conservatives on one side and the liberals on the other here, conservatives think things like 1070 is good. So that's a suggestion the other way. That's why I think it's close to predict how they'll deal with 1070.
Ted Simons: Paul, always a pleasure. Thanks for joining us.
Paul Bender: Same here.
Paul Bender: Professor of Law, Arizona State University;