But as with the ruling today on Wisconsin's anti-bargaining law, it's still too soon to say how the issue will play out in the end
It's too bad that United States Supreme Court Justice Anthony Kennedy, the eternal swing voter, did not write his own opinion in Thursday's employer/immigration/licensing case out of Arizona. If he had, perhaps the world would have a better sense of where the Court will come down next term, or the term after that, when the justices finally tackle Arizona's even grander battle with the federal government over immigration policies and practices.
Until then, we are left only to ponder the possibilities raised by the majority's opinion(s) in Chamber of Commerce v. Whiting. It is true that Justice Kennedy sided (this time) with his conservative colleagues in endorsing an Arizona law that authorizes state officials to suspend or revoke the licenses of business whose managers knowingly or intentionally hire undocumented workers. That law, five justices said with differing degrees of rectitude, is neither preempted by federal immigration law nor implicitly in conflict with federal immigration policy.
But it is also true Arizona's licensing law is very different in law and fact from those portions of S.B. 1070 which were passed last year by state officials and subsequently blocked by the federal courts. The more recent Arizona provisions, among other things, would require state law enforcement officials to stop and fine people suspected of being unlawful immigrants. They thus implicate significant individual rights and constitutional standards -- of equal protection, of due process, etc. -- which weren't even mentioned, let alone analyzed, by either side in the Whiting case. Thursday's ruling was about statutory construction. The next Supreme Court battle over Arizona's immigration initiatives will be about the Constitution itself.
Without going into mind-numbing detail about federal preemption law, and the comparisons and contrasts between the federal and state statutes at issue in the Whiting case, the difference between Arizona's licensing law and its immigration enforcement law is perhaps best illustrated by the way the lower courts evaluated the measures. Both the federal trial court and the 9th Circuit quickly blocked as unconstitutional enforcement of S.B. 1070's most onerous provisions -- the case is now gearing up for a trial on the merits. On the contrary, both a federal trial judge and the 9th Circuit endorsed as valid Arizona's licensing law as a legitimate exercise of state power. That's right. In this case, the Supreme Court agreed with the 9th Circuit (a rare event, indeed).
Much of the legal analysis contained in the Whiting ruling focuses upon the meaning of a "licensing law." If Arizona's law is considered such a law, it has greater protection from federal preemption doctrine than it would otherwise have. Federal lawyers and the Chamber of Commerce had argued instead that Arizona's measure was not technically such a law. Again, I will spare you the painful details. But here's where Chief Justice John Roberts, who authored the majority ruling, had to say about that argument:
It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.
Instead, the Chief Justice concluded:
As with any piece of legislation, Congress did indeed seek to strike a balance among a variety of interests when it enacted IRCA [the federal immigration statute at issue in the case]. Part of that balance, however, involved allocating authority between the Federal Government and the States. The principle that Congress adopted in doing so was not that the Federal Government can impose large sanctions, and the States only small ones. IRCA instead preserved state authority over a particular category of sanctions--those imposed "through licensing and similar laws."
Of course Arizona hopes that its law will result in more effective enforcement of the prohibition on employing unauthorized aliens. But in preserving to the States the authority to impose sanctions through licensing laws, Congress did not intend to preserve only those state laws that would have no effect. The balancing process that culminated in IRCA resulted in a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.
Justice Elena Kagan recused herself from the case -- as she has so often this term. But there were two dissenting opinions. Justice Stephen Breyer took issue with Arizona's expansive definitions of "licensing." He wrote:
Arizona calls its state statute a "licensing law," and the statute uses the word "licensing." But the statute strays beyond the bounds of the federal licensing exception, for it defines "license" to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State (excepting professional licenses, and water and environmental permits). Congress did not intend its "licensing" language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act's preemption provision, indeed to subvert the Act itself, by undermining Congress' efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.
Justice Sonia Sotomayor also chimed in with a dissent -- and a more direct assault upon the majority's ruling. She didn't need to futz around with Justice Breyer's definitional musings. Instead, she wrote:
Congress would not sensibly have permitted States to determine for themselves whether a person has employed an unauthorized alien, while at the same time creating a specialized federal procedure for making such a determination, withholding from the States the information necessary to make such a determination...
Add Justice Kagan to the mix here, and the likely result would have been a 5-4 ruling along the ol' familiar ideological lines. And Justice Kennedy, by not writing his own opinion, sagely left himself with plenty of wiggle room in case he wants to strike down Arizona's draconian immigration-enforcement measures contained in S.B. 1070. So if you are at barbecue this holiday weekend and someone sidles up to you at the grill and asks you what you think of Whiting and its ramifications for looming immigration battles you can say with a straight face: "Too soon to tell. As always, it's Kennedy's Court, and the rest of the justices are just sitting on it.
Meanwhile, on Wisconsin: Much in the same way that it's too early to tell how the Arizona immigration conflict ultimately is going to play out in the courts, it's a fool's errand to make too much of the ruling Thursday by a local trial judge permanently enjoining the enforcement of Wisconsin's controversial new collective bargaining law. The Wisconsin Supreme Court is going to hear argument on the case on June 6th and is bound in no way by what Dane County Circuit Court Judge Maryann Sumi has ruled about the impact of the state's open meetings laws on the way the bargaining measure was enacted.><
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