Earlier this year, the words "controversial Arizona law" and "illegal immigrant" conjured up images of police stopping people to check their papers. While that statute -- which requires Arizona police to demand ID papers from anyone they suspect is in the country illegally -- is likely to get to the U.S. Supreme Court in a year or two, on Wednesday the court is hearing arguments about a different, potentially much more effective Arizona law aimed at ending illegal immigration.

The primary driver of illegal immigration is employment opportunity -- the chance to earn enough to better one's life. Going after workers, as long as there are plentiful employers to hire them, has proved an ineffective strategy. So in 2007 Arizona passed the "Legal Arizona Workers Act," which targets employers who knowingly employ illegal immigrants. If an employer is caught knowingly employing illegal immigrants, the employer gets its Arizona business license suspended, without which it cannot legally operate in the state. If the employer is caught twice or more, its license can be revoked -- a punishment being referred to as the "business death penalty."

Business and immigrant rights groups immediately challenged the law as unconstitutional, losing at trial and on appeal. Today they make their case to the Supreme Court, aided by six friend-of-the-court briefs, including one filed by the U.S. However, Justice Elena Kagan won't have a role in deciding this case, presumably because as solicitor general she was involved in it and would at least appear biased in favor of striking down the law. Her recusal creates the possibility of a 4-4 tie, however unlikely that may be, which would result in the law being upheld, since Arizona was the most recent winner in the case.

A Case of Preemption?

The key legal issue is "preemption" -- the idea that federal laws trump state laws. This notion is grounded in the "Supremacy Clause" of our Constitution, which states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land. . . ."

For preemption to apply, the state law must either explicitly or implicitly conflict with federal law. The federal law at issue in this case is the "Immigration Reform and Control Act of 1986," which establishes a pretty comprehensive scheme of regulation, precisely the sort of thing that triggers broad preemption. The reason Arizona has won so far, however, is that the federal law specifically allows states to continue regulating business licenses:
"[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." (italics added)
A clear but detailed preview of the legal issues was laid out by Jessica E. Slavin and Alyssa Johnson for the American Bar Association.

If Arizona wins this case, presumably many other deeply frustrated states will follow suit, notwithstanding the lobbying fire power of the business, immigration and labor groups lined up against the Arizona law, and surely against any copycat efforts. As with all legislation aimed at illegal immigration, the biggest downside is the potential discriminatory impact against people who are here legally, including native born Americans of Latino descent. But in comparison to the policing law that caused the uproar a few months back, this approach poses much less discriminatory risk.

A decision isn't expected until spring.

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bobwehde

The shooter has to be an Mexican I. A.

January 08 2011 at 5:22 PM Report abuse rate up rate down Reply
Pete England

If Federal Government Law requires all Arizona Business Employers to do all within their power to ensure that all Employees requesting work are in the US legally and have valid work permits/SS cards, why is that same Federal Government objecting to Arizona's SB 1070 by asserting Arizona Law Enforcement officials CANNOT ASK SIMILAR QUESTIONS of people suspected of violating Local/State Laws??? Is this not a contradiction?

December 13 2010 at 12:24 AM Report abuse +3 rate up rate down Reply
fmilcusguns

I think that every company that hires undocumented individuals should receive subsidies from the government to make their pay equal to others working for that employer. I think that undocumented individuals should get free health care and free social security because a large portion of their pay is sent to starving relatives in other countries. I also think the employers should provide them with a car or at least some transportation to get to their jobs. and the employer should provide them free child care because they have so many children that would go unattended during work days and employer should provide free breakfast and lunch so that they will be up to the hard work that they perform that no one else will do. I also think they should be given time off with pay to attend all civil rights protest and their homeland national holidays as well as US holidays. I also think that employers should be respnsible for paying for the education for undocumented children of undocumented individuals. I also think that the employer should provide subsidies for housing since undocumented individuals sometimes live communially violating housing codes and are subject to arrest for it. I also think employers should be made to pay not only health insurance but life insurance because undocumented individuals work so hard shortening their life span and if they die they would leave too many dependents un cared for. The employer should also pay their union dues because undocumented workers need to send more money back home to supliment nationa economies. I also think that employers should provide free mailing supliments because it cost so much to send money to other countries. It should also be made mandatory that all employers of undocumented individuals must provide free English lessons and pay for english tutors. and it should be made essential to allow every undocumented individuals to be allowed to use thiteir native language while in the work place and the employer must provide translators in their behalf. All undocumented individuals should be given citizenship in the United States after six months because they have a job and should not be discriminated against for being free loaders on the backs of US Tax paying US citizens. I also think that all US Citizens should be taxed so the money will be there ready to pay for the transportation to the US for the families of the undocumented workers already in the United States so they will be safe and unmolested on their journey to join their families in the US. When all of these conditions are met in behalf of the undocumented everyone will live happily ever after.

December 12 2010 at 9:10 PM Report abuse rate up rate down Reply
1 reply to fmilcusguns's comment
Vi Lovendusky

The author of this article is an idiot

December 24 2010 at 6:21 PM Report abuse rate up rate down Reply
Tony

Like it or not, a natural border has existed between Mexico and the USA before they were countries and a migration of people has occured for thousands of years. It is naive to think that because America passes laws and puts man-made barriers that will change. Furthermore, it is all about money and as long as Big Business is making money, illegal immigration will continue. For example, something alot of people probably don't know and which I heard on an investigative report, the Arizona law SB 1070 was passed after that state's governor and top legislators met with bigwigs of the private prisons, who will house the detainees for a fat profit. How much do you want to bet that these private prisons will become big campaign contributors for these politicians. Thus, the illegals will keep coming so that they can make the money and Arizona will put up a good front in an effort to "stop" them. It is all about the $$$$$

December 12 2010 at 8:15 PM Report abuse rate up rate down Reply
marhee9

They talked about this at donsmithshow.com today. That is the best conservative site on the internet.

December 12 2010 at 8:10 PM Report abuse rate up rate down Reply
misterrs58

Of course they can, and they should! There are lots of able bodied American's that can use those jobs. And anyone that say's American's won't do the jobs, are either illegals themselves, or legal Mexican's trying to protect their nitch. If an individual isn't legal, then he shouldn't be able to get a job here until he is. My family is part American Indian and have worked the fields themselves for generations. Our High School aged children should have such jobs offered to them, rather than be left to hang-out on the streets, because no one would hire them. Mexico can provide their own workers with better paying jobs, if only they'd see the value in their own people.It is partly the responsibility of the American government to help instill this wisdom.

December 12 2010 at 7:22 PM Report abuse +6 rate up rate down Reply
Lane's

SEND THEM HOME. EMPLOY U.S. CITIZENS FIRST WITH A FAIR OVER THE COUNTER WAGE. and if any jobs are left then temporary employment for non citizens

December 12 2010 at 4:09 PM Report abuse +5 rate up rate down Reply
dseri6

The State and Federal has always had the power to eliminate hiring illegals simply by making it manditory to check every SS number before the point of hire using the data base now in place. The truth is that employers want cheap labor. Greed and the lust for the dollar insures that tough-enforeceable immigration hiring practices will never take root in this Country.

December 12 2010 at 1:54 PM Report abuse +7 rate up rate down Reply
intarsiagrinder

As it summarizes in the mind of this 84 year old first generation immigrant offspring, the course of action is extremely clear. All this game playing with people's lives is beyond logical comprehension. Prerequisite immigration Law demanded that my parents have the necessary documentation to be eligible for entry into the U.S. It was that way then and should damn well be that way now. In any way, shape or form, there is no way the majority of illegals could get away with crossing borders and entering into any other nation without breaking the Law. The problem here is not the illegals,,,, it's the problem of leadership neglecting to inforce the Law they swore to uphold. Those in high level decision-making positions of power, should be removed from Office and imprisoned.

December 12 2010 at 11:26 AM Report abuse +14 rate up rate down Reply
2 replies to intarsiagrinder's comment
Vi Lovendusky

The person writing this article hits the problem right on the head.
Maybe we should be removing those in government that fail to enforce our immigration laws.

December 24 2010 at 6:33 PM Report abuse +1 rate up rate down Reply
equus2056

When our president and secretary of state take time out of the busy schedules to file complaints with the UNITED NATIONS (NO NOT AN AMERICAN GOVERNING BODY BUT THE NEW WORLD POLICE)what does that tell you about our leadership? They are going to bat for big business and to make this country another third world nation. We are going on a trip......back in time..........to the Industrial Revolution......where thousands vied for one job and the guy that would work for nothing got it.......get it?

January 13 2011 at 4:27 PM Report abuse rate up rate down Reply
jkennedy806

Wasn't the I-9 suppose to notify employers who was allowed to work in the US and who was not? I find it offensive that when I apply for a job, I have to give someone my Social Security card, fill out all sorts of paperwork, give references /witnesses like I am in a protection program, show my driver's license and then an undocumented worker more than likely gets the job. My neighbor across the street works in a warehouse and he says there alot of undocumented workers working/thanks again to the tempy aagencies as well.

December 12 2010 at 10:24 AM Report abuse +12 rate up rate down Reply