WASHINGTON — The Supreme Court this week takes up the national immigration debate that continues to stymie Congress.
While immigration advocates and some Democratic lawmakers conjure hopes of legalizing farm workers and students in a lame-duck session, justices on Wednesday confront a real-world immigration enforcement dilemma out of Arizona.
The court is sure to do something; Congress is not.
"Congressional inaction has certainly left a vacuum on a number of immigration fronts," Muzaffar Chishti, the director of the Migration Policy Institute office at New York University Law School, said Monday.
The court's hourlong oral argument on Wednesday morning addresses one of Arizona's several controversial laws targeting illegal immigration. The law in question requires Arizona employers to determine worker eligibility through an electronic system called E-Verify.
The Legal Arizona Workers Act of 2007 also imposes uniquely tough sanctions, which can include stripping the business licenses from employers that knowingly or intentionally hire illegal immigrants. Without a license, businesses shut down.
Arizona officials say they have the authority to regulate in-state businesses, though so far only three employers have faced suspension or termination of their business license.
"While the federal government is fully capable of imposing civil fines and criminal penalties, the revocation of state-issued licenses is peculiarly within the province of the states themselves," Arizona Solicitor General Mary O'Grady stated in one legal brief.
But opponents ranging from the U.S. Chamber of Commerce to the Obama administration decry the Arizona law as a "business death penalty" as well as an infringement on the national government.
"Most questions involving immigration are regulated exclusively by the federal government," attorney Carter G. Phillips noted in a legal brief for the Chamber of Commerce.
This so-called pre-emption argument is at the heart of the case now called Chamber of Commerce v. Whiting. Pre-emption also underpins a separate legal challenge to a more sweeping Arizona law that requires police to check the immigration status of an individual when there is a "reasonable suspicion" that the person is undocumented.
The U.S. Court of Appeals for the 9th Circuit heard a challenge last month to the other Arizona law, which could likewise be Supreme Court-bound.
Both of Arizona's laws, in turn, arose in the shadow of past congressional action. In 1986, through the employer sanctions provision of the Immigration Reform and Control Act, Congress made it illegal to knowingly hire an illegal immigrant. In 1996, Congress established the voluntary, Internet-based employer verification program now called E-Verify.
E-Verify had about 103,000 employers registered as of last year.
"Although Congress has not made the program's use mandatory on a nationwide basis, federal law does not prohibit a state from making its use mandatory for employers within its boundaries," O'Grady argued on Arizona's behalf.
The Obama administration counters that Congress didn't intend employer sanctions to be managed by states, except for very limited circumstance. The administration also argues that E-Verify never was meant to be obligatory. Past congressional efforts to mandate E-Verify for all employers haven't gained traction.
"Congress has repeatedly specified that participation shall be voluntary," acting Solicitor General Neal Katyal noted in a legal brief.
Congress largely has shied away from serious immigration debate since 2007, when a comprehensive legalization and border security package faded in the Senate. The last Senate Judiciary Committee hearing on immigration was in May, and the full Senate declined in September to consider a major legalization bill.1 comment on this story
The last House Judiciary Committee immigration hearings were in September, one of them headlined by Comedy Central satirist Stephen Colbert.
Nonetheless, some lawmakers hope the lame-duck Congress can pass a bill before Republicans regain House control in January. One proposal, called the DREAM Act, would legalize an estimated 1.1 million illegal immigrant students and others through the year 2020. Another proposal, dubbed AgJobs, would legalize an estimated 1.5 million farm workers and their family members.
Democratic Sen. Dianne Feinstein of California has suggested combining the two proposals, and Senate Majority Leader Harry Reid has spoken of bringing up an immigration package this month. Still, the prospects for anything but for a symbolic showing before the 111th Congress adjourns appear unlikely.
"It seems like they're not going to come up with the 60 votes (necessary)," AgJobs supporter Rep. Jim Costa, D-Calif., conceded, looking at the Senate.