Why Arizona’s Anti-Immigrant Law is Unlikely to Survive Supreme Court Scrutiny; National Civil Rights Group Lauds Assistant AG’s Findings on Sheriff Arpaio

by Jeremy Leaming

Just because the Supreme Court upheld Arizona’s law penalizing businesses for hiring undocumented workers, does not mean the state’s controversial, and exceedingly harsh, anti-immigrant law, SB 1070, is destined for approval by the justices.

In an ACS Issue Brief, Pratheepan Gulasekaram, a Santa Clara University law school professor, explains why the Supreme Court’s narrow opinion in Chamber of Commerce v. Whiting issued in May, will likely have no bearing on the justices’ consideration of SB 1070.

The law at the center of the Whiting opinion, the Legal Arizona Workers Act (LAWA), requires Arizona businesses to use the federal E-Verify system to ensure their employees are legally in the country, and penalizes those companies that hire undocumented workers. The 5-3 majority in Whiting concluded that Arizona’s E-Verify law was not preempted by the federal Immigration Reform and Control Act, which states that it trumps “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” undocumented workers. The majority concluded the licensing law, did not run afoul of the IRCA.

Professor Gulasekaram calls it is a mistake to conclude that Whiting means Arizona’s SB 1070, much of which was invalidated by the U.S. Court of Appeals for the Ninth Circuit, is likely to be found constitutional by the high court.

Instead Supreme Court precedent stands “for the proposition that state regulation of employment relationships between state employers and unlawfully present persons is permissible, if the federal government has not otherwise prohibited it,” Gulasekaram writes. That precedent, he continues, actually suggests it is most likely that he the high court will “strike down state immigration schemes like SB 1070.”

Although both Arizona laws are aimed at making life difficult for undocumented persons in the state, only the law dealing with the employer-employee relationship, LAWA, is not preempted by federal immigration law. Indeed, the professor writes, “federal law contemplates the existence of state business-licensing laws through a textual exception in federal immigration law itself. And, even with this express exception, Whiting is neither a unanimous nor far-reaching opinion. At most Whiting stands for the proposition that state business-licensing laws that regulate employers will not reflexively be struck down.”

But SB 1070, which requires state law enforcement officials to take on duties of federal immigration enforcement officials, is another story.

“A state’s decision,” Gulasekaram writes, “to create its own immigration crimes and engage its law enforcement officers in civil and criminal immigration regulation, untethered from federal oversight, violates the basic notions of federal supremacy and likely creates equal protection and due process concerns as well.”

In fact, a report issued yesterday by U.S. Assistant Attorney General Thomas E. Perez finds that Maricopa County Sheriff Joe Arpaio routinely violated the constitutional rights of Latinos in the community.  

Perez’s findings concluded that Arpaio’s office engaged in “unconstitutional policing; specifically … in racial profiling of Latinos,” which included unlawful stops, detentions and arrests of Latinos. The sheriff’s office also “unlawfully” retaliated against those who complained about these tactics. The assistant attorney general also said that Maricopa County operated its jails “in a manner that discriminates against Latino inmates,” and “routinely punishes Latino inmates that are limited English proficient when they fail to understand commands given in English.” All those actions, Perez said subvert the Civil Rights Act of 1964.

Reporting on Perez’s findings, The New York Times described them as revealing “a picture of a department staffed by poorly trained deputies who target Latino drivers on the roadways and detain innocent Latinos in the community in their searches for illegal immigrants.” 

Arpaio, as The Times notes, enjoys referring to himself as the nation’s “toughest sheriff,” and that many of the Republican presidential candidates have clamored for his “backing.”

Janet Murguia, president and CEO of the National Council of La Raza, the nation’s largest Hispanic civil rights group, lauded Perez’s findings, in part, for revealing “the appalling injustices that have not only been authorized, but also encouraged by Sheriff Arpaio.”

The assistant attorney general’s findings Murguia said “cement the fact that Arpaio is not ‘the nation’s toughest sheriff,’ he’s America’s worst sheriff.”

Toward the end of his Issue Brief, Gulasekaram notes that state immigration enforcement schemes, like Arizona’s, lead to disconcerting problems Perez’s findings expose. Essentially SB 1070 requires local enforcement officials to “perform tasks beyond their training,” he writes.