Supreme Court Upholds Arizona’s Anti-Immigration “Business Death Penalty”

The Supreme Court handed down a major immigration ruling today in the case of Chamber of Commerce v. Whiting. At issue was the Legal Arizona Workers Act, a controversial state law that requires all Arizona employers to confirm the legal status of their workers via E-Verify, the federal electronic verification system. Under the law, the state may impose draconian penalties, including the loss of business licenses, on those firms that hire unauthorized aliens. The Chamber of Commerce, which brought the suit, calls the law a “business death penalty” and, in a notable twist, the Chamber’s allies in the fight included leading liberal groups such as the Service Employees International Union, the Southern Poverty Law Center, the National Immigrant Justice Center, and the National Council of La Raza.

The question before the Supreme Court was whether the Arizona statute conflicts with federal immigration law and is therefore preempted by the “comprehensive scheme” Congress developed to address the matter. In a divided ruling that split along conservative-liberal lines (with Justice Elena Kagan recused), Chief Justice John Roberts dismissed the Chamber’s arguments and ruled that Arizona’s actions are perfectly permissible. Not only will this decision clear the way for similar laws in other states, it serves as a potential preview for the legal battle over Arizona’s notorious Support Our Law Enforcement and Safe Neighborhoods Act, which requires police officers to “make a reasonable attempt” to determine the immigration status of anyone they encounter through “any lawful stop, detention, or arrest.” As my colleague Jacob Sullum has observed, under that law “even legal permanent residents and U.S. citizens—who are under no obligation to carry Arizona-approved identification but could be detained if they don't—would be subject to ‘distinct, unusual and extraordinary burdens’ because of the way they look and sound.”

The Obama admnistration's legal argument against this "papers please" law also raises the question of federal preemption, and today’s decision in Whiting doesn’t bode well for the challenge.

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  • Almanian||

    Let me be clear. There are those who say that, normally, Almanian would support anything that was opposed by the SEIU, the Southern Poverty Law Center and the National Council of La Raza. And, on the other hand, that Almanian would reflexively oppose anything supported by those groups.

    To those people, I say - this is not one of those times.

    As a bidnessman, this is just.....bad law. *barf* Thanks for making it less likely I'll do bidness in your state, AZ! No need to worry about the illegals tukking yerrr jerrrbsz when no jobs were created or saved cause we set up shop in - I don't know - New Mexico.

    Not a good move, AZ. I'll defer to others more knowledgable than I as to the constitutional questions (can the states make such laws, why, why not...)

  • Max Stirner||

    So instead of illegals taking their jobs, now they just... won't have any jobs. I don't get why I shouldn't be able to hire anybody I want, regardless of race or nationality. So I can transfer money to and from Mexico, but I cannot accept labor? Ironically, I expect many "small government conservatives" to support this overwhelming expansion of state power.

  • Jim||

    It's because in their minds, only the "small government" part of "small government conservatives" has the sarcastic quotation marks around it.

  • jtuf||

    Let's raise the number of Diversity Visas to 1 million per year and allow aspiring immigrants from all nations to apply to the Diversity Visa Lottery.

  • Tman||

    I'm actually for this law. Businesses are allowing illegal immigrants to work under false identification. In many cases the Social Security numbers being used already belongs to someone else. So when the employer using the stolen ID information from his illegal immigrant employee files taxes under that SS#, the person who the number really belongs to get screwed. Repeatedly. Ever try convincing the IRS that you didn't make as much money as the say you did? Good times.

    Businesses are facilitating Identity Theft willingly by refusing to verify their employees. This should be a punishable crime.

    Ultimately I believe that we should let more people in to the country legally every year (Wider Gates, Taller Fences) but there is a right way to do this and a wrong way. Harming innocent people by allowing their ID to be used without their authorization for work or housing or whatever by an illegal immigrant is the wrong way.

  • ||

    There was a time, not too long ago, that illegal immigrants could use Individual Tax ID Numbers (ITINs) rather than SSNs for work and tax documentation.

    Then the federal government in its infinite wisdom started using ITINs as an indicator that employees are illegal, driving immigrants into needing real SSNs in order to exercise their rights and creating actual victims where none existed before.

    It's awful hard to put much blame on illegals for acts of the government they are simply trying to work around.

  • Tman||

    It's awful hard to put much blame on illegals for acts of the government they are simply trying to work around.

    I don't blame the illegals at all. If I lived in some dump in Nicaragua and I could move north of the border to live in Nashville and hang drywall for more more $ per hour than I would make all year in Nicaragua I'm sure I would do the same thing. But this doesn't mean I think it's ok to screw up someone else's life in order to do it. I agree wholeheartedly that the government is the reason it's messed up in the first place, since SS#'s were never meant to be de-facto ID#'s to begin with, but here we are.

    Wider gates, taller fences.

  • Robert||

    How is the person whose real SS# is being used getting screwed? IRS still gets their real tax return, i.e. the one with their signature on it, plus their own SS gets credited not only with their own income but that of the other person using the no.

  • Tman||

    How is the person whose real SS# is being used getting screwed?

    The IRS will not process your tax return if you don't report all of the wages that you've earned according to their records. So if you are due a tax refund, you will not get your refund. If you are suppose to pay the IRS, you will now have additional wages reporting which will raise your income bracket and you will have to pay more back to the IRS.

    There is a litany of problems associated with employment-related ID theft. None of it is "beneficial" to the person whose real ID is being used.

  • ||

    Businesses don't have the responsibility to police their employees for identity theft. Punishing them for the crimes of their employees makes no sense.

  • Tman||

    Businesses don't have the responsibility to police their employees for identity theft.

    Not only do they have the responsibility, they have a legal obligation to report ID theft. The problem is that some employers -most especially the ones that rely on illegal immigrants to supply their labor- are well aware that their employees are giving them fake SS#'s in order to get employment. Some times employers make up the SS#'s just so they can hire the employee. This in turn creates a giant headache for the person that the ID actually belongs to.

  • Zeb||

    So the real solution is to let people hire whoever they want to. ID theft is certainly a bad thing, but I think that the question here is whether a law such as this one actually makes things better.

  • Tman||

    So the real solution is to let people hire whoever they want to.

    In a perfect world, yes I agree. But we depend on income tax dollars being accounted for in a verifiable manner in order to support the leviathan government we've created.

    ID theft is certainly a bad thing, but I think that the question here is whether a law such as this one actually makes things better.

    Making employers verify that their employees aren't using someone elses information to get employment is the only way to stop people from committing employment related ID theft.

    Unless you have another suggestion, I don't see what other options are available.

  • ||

    Arizona can pass a law that says that no employee or taxpayer in the state can be discriminated against by any party, including the federal government, on the basis of using a valid ITIN as employee and taxpayer identification.

  • Tman||

    What if someone commits ID theft by using someone else's ITIN number?

  • ||

    Let "valid" subsume "is one's own."

  • Tman||

    Not to beat a dead horse here or anything, but you still have the same problem whether you're using an ITIN or a SS#. Either way you have wages reporting to the IRS that don't belong to you, and this will affect your filing status.

    I'm assuming you are saying just have the IRS create a sub-file so it doesn't affect the real person who the ITIN/SS# belongs to?

    This makes more sense, but I have zero faith that the IRS would properly implement this procedure in a way that would hold people harmless from ID Theft.

  • ||

    No. I'm saying that the illegal employee gets an ITIN from the IRS -- which anyone in the world can do -- and uses it. Then you prosecute him for ID fraud if he uses someone else's. Of course, the state government must still explicitly protect his use of that ITIN against employment persecution by the federal government.

    This is exactly the way things were done in the 1990's, back before ID theft was an issue because it wasn't needed to be employed.

  • Tman||

    I'm saying that the illegal employee gets an ITIN from the IRS -- which anyone in the world can do -- and uses it. Then you prosecute him for ID fraud if he uses someone else's.

    This sounds good in theory, but then you are going to have to get the government to overrule ICE in order to allow illegal immigrants to get ITIN#'s. I would be all about this if they would, because I agree it would solve the problem, but this administration won't go anywhere near this issue because it will affect their polling with Latinos. The "status quo" is easier to maintain in order to keep getting the Latino vote, so you're just going to see more states exercising their right to enforce their own state laws, which SCOTUS just agreed.

  • Jack||

    Being a contractor who has to compete against other contractor's using help from illegal immigrants I am all for the law. It's is a lot easier to pay employees an actual living wage when your competition has to also. The only problem with the law is that especially in the construction field a business will find an immigrant with papers and subcintract through him to provide labor. It is the the responsibility of the subcontractor to verify all his employees providing a labor service for the original contractor are legitimate.

  • Zeb||

    Well, the IRS shouldn't be involved in immigration enforcement. Just assign a number to anyone who gets a job and collect the taxes. If they are illegal, then they won't file a return and the IRS collects that much more money. Seems like a pretty neat solution: get rid of identity theft by eliminating the incentives to commit identity theft.

  • Zeb||

    Stop requiring SSN for employment and let people hire who they want. That is the answer. Sorry, I just don't care anymore whether my solutions are politically feasible.

  • ||

    Exactly. This is bedrock libertarian principle.

    Freedom of contract. Freedom of exchange.

    Nobody should be calling themselves a libertarian who doesn't think that employers should get to decide who to hire or not hire without government interference.

  • Apogee||

    Nobody should be calling themselves a libertarian who doesn't think that employers should get to decide who to hire or not hire without government interference.

    I disagree, only because the arguments usually encompass far more than the simple question of whether employers are free to hire whomever they wish.

    As many have said before, the existence of the welfare state, war on drugs, voting verification, legal immigration route and many other factors play into the question of illegal immigration and employers rights.

  • Jim||

    Wouldn't it raise an eyebrow or two at the IRS if you (your SSN) were reporting income from the same time period in Tempe, AZ, and Madison, WI, from two different employers?

  • Tman||

    Yes, it does. In the last decade the IRS has actually constructed an entire department dedicated to resolving employment related ID theft. This is why the IRS rejects electronic returns when the numbers they have don't match what you're reporting. Many times it's simply an accounting error (a "fat finger" clerical error) but sometimes it is in fact ID theft. There is an extensive procedure to follow in order to resolve this when it happens.

  • ||

    Yes, it's time to move your business to that other country with the more liberal immigration laws. Which one would that be exactly?

    It's amusing to watch pseudo-libertarians rant about the rule-of-law out of one side of their mouths while insisting that every immigration law go unenforced out of the other.

  • ||

    Derp?

  • ||

    Not every immigration law. Only those that violate individual rights -- which is most of them.

  • ||

    So let's analyze the idiotic fallacies in this post.

    Yes, it's time to move your business to that other country with the more liberal immigration laws. Which one would that be exactly?

    We're the most free, so we don't have to be more free! Definition of a non sequitur.

    It's amusing to watch pseudo-libertarians rant about the rule-of-law out of one side of their mouths while insisting that every immigration law go unenforced out of the other.

    It's also amusing to watch someone try to find a contradiction in libertarians not supporting an authoritarian law. I didn't know that libertarians ranted about law and order. I thought we ranted about freedom and justice.

  • cynical||

    I think anyone who supports this bullshit should first have to actually do a trial run through setting up an E-Verify account and running checks. What a fucking POS. Sponsored in part by Tylenol, I assume.

  • ||

    "It's also amusing to watch someone try to find a contradiction in libertarians not supporting an authoritarian law."

    Authoritarian law? Let's see, it was written and passed by the duly elected representatives of the people and reviewed and found constitutional by an independent judiciary. Tell us, in your fantasy world how will "non-authoritarian" laws be passed?

  • Jim||

    Translation: "The current procedure was followed, therefore there is no problem. This presumably applies equally to ALL laws passed in this nation and upheld by the courts, therefore, there can be no authoritarianism! Great news, America! It's impossible for there to be an authoritarian law in our nation!"

  • ||

    Wow, why didn't I see it? No law is truly legitimate until "Jim" has approved of it. Until then, it's "authoritarian". I sure am glad that all of this will be worked out in the coming "libertarian" paradise, where "freedom and justice" will prevail.

  • ||

    "This presumably applies equally to ALL laws passed in this nation and upheld by the courts, therefore, there can be no authoritarianism!"


    See, that wasn't so hard. Now, if you do not like this law all you have to do is work to have it changed or removed; a process that we allow under our terrible "authoritarian" system.

  • Zeb||

    Boring.

  • ||

    Now, if you do not like this law all you have to do is work to have it changed or removed

    What the fuck do you think we are doing?
    Do you see us out here raising an army to bomb the E-Verify servers?

  • Zeb||

    Authoritarian in the sense that it does not protect anyone's rights, but simply asserts authority over something that should be a fundamental individual right: the right to contract with whomever you want to on whatever terms are mutually acceptable.

  • MWG||

    But... but... democracy! Majority rule!

  • ||

    I'm increasingly annoyed by the large number of people today who run around calling themselves libertarians, but actually have no idea what the word really means.

  • Richard Keefe||

    "in a notable twist, the Chamber’s allies in the fight included leading liberal groups such as the Service Employees International Union, the Southern Poverty Law Center, the National Immigrant Justice Center, and the National Council of La Raza."

    Why is this a "notable twist"??

    Every one of those groups rakes in tens of millions of dollars a year off the backs of the illegals.

  • ||

    In other legal news, the Wisconsin union bill has been struck down by Judge Sumi.

    I assume it is headed to the wisconsin supreme court.

  • ||

    Just when I thought reason magazine couldn't get any more lowbrow or anti-intellectual...

    you laissez faire zealots probably think ILLEGAL aliens (which is, apparently, a legal status beyond this author's comprehension)) contribute to the economy

  • ||

    BWWWAAAAAAAAAAAAA.

    Once again, faux libertarians get it oh-so wrong.

    The SCOTUS justices get it right. The legislators of the State of Arizona can craft such a law as they have. The law does not conflict in any manner with the U.S. Constitution.

    Reason's editors have immigration oh-so wrong. They're liberals on the matter and not libertarians.

    Authentic libertarians oppose any act that expands government. Thus all authentic libertarians oppose illegal immigration, amnesty for illegals, gay marriage.

    For all such issues have nothing to do with inherent rights, but have everything to do with privileges conferred in favor of organized groups.

    Liberals masquerading as libertarians support such expansiveness of government.

    Clearly, borders should be open and competition should follow such that only the best and capable should get to live another day in America. All tenth-rate people should get forced by the natural order of competition to live elsewhere.

    Yet, you cannot have such as long as you have an income taxation system and Welfare Socialism.

    The unpredictable changes to population brought forth by illegals makes it impossible to plan centrally. In short, it throws off the actuarial tables.

    Those Americans who believed the rules to be one way and built their entire lives around one set of circumstances get throughly screwed by a change in the rules for their end game.

    Reason editors need to get smarter or Reason's backers need to hire persons with suitably higher IQs so that authentic libertarian belief gets expressed on all issues.

  • ||

    Er. How are laws barring people from hiring someone without permission from the government "smaller government"?

    The unpredictable changes to population brought forth by illegals makes it impossible to plan centrally. In short, it throws off the actuarial tables.

    Since when does any libertarian support "central planning"?

    All sorts of things in the economy cause "unpredictable changes". That's what we LIKE. Evolution. Development. New Technologies.

    It's the statists who think that the economy needs ot be controlled and made predictable so that it can be "planned".

    You don't even know what a libertarian is.

  • ||


    All sorts of things in the economy cause "unpredictable changes". That's what we LIKE. Evolution. Development. New Technologies.

    That's a non-sequitur, irrelevant to the issue.


    Since when does any libertarian support "central planning"?

    We don't. That's why two wrongs don't make a right.

    Authentic libertarians seek to repeal the 16th Amendment and the tortured reading of "general welfare" to justify specific welfare.

    Supporting illegals and gay marriage only compounds problems in place. Such support does not lessen government. Such support grows government.


    It's the statists who think that the economy needs ot be controlled and made predictable so that it can be "planned".

    You don't even know what a libertarian is.

    You reveal yourself to suffer from a mediocre IQ. That's why you cannot follow easy-to-read English, which spells out the case.

    Clearly, Hazel, you don't at all what libertarianism is.

  • mark2462||

    It's about Damn time!

  • ||

    A VICTORY FOR ALL JOBLESS AMERICANS

    The American people finally have their interests recognized, by the Supreme Court of the land, asserting that Arizona's federal mandatory E-Verify was upheld. Today it’s a major victory for the American workers and a killing stroke to the US Chamber of Commerce and an attempt by the Department of Justice to protect illegal aliens in the workplace. This will strengthen enforcement by attrition in every business and control penalties with businesses that don't comply. It gives all states the right to implement and mandate the E-Verify program and open the door to hefty fines, loss of business licenses, assets and the risk of prison.

    Other states will now follow the example of Arizona and those who don't, will be in the forefront of mass evacuations from these hard policing states to states as the Sanctuary State of California, Nevada and Utah. In a 5-3 victory the justices, repudiated the pro-illegal politicians, Governors, Mayors and lower ranks of leftist and Rino Republicans.

    ONE QUESTION THAT MUST BE ASKED, CAN ILLEGAL WORKERS USE A ITIN NUMBER INSTEAD OF A SOCIAL SECURITY NUMBER WITH OTHER DOCUMENTS? WILL THE ITIN NUMBER BE ACCEPTABLE AS E-VERIFY IDENTIFICATION, AS THE US GOVERNMENT KNOWS ILLEGAL ALIENS CAN USE THIS NUMBER AS THE IRS SUPPLIES IT?

    Nothing will do more, including the fence, to retard future illegal immigration occupation and accelerate the departure of the current 20 million illegal populations than taking away the job magnet. This is a significant win as other States following Arizona's lead, could have been crushed if the verdict had gone the alternative route. The American workers now have the impetus, to push the Congress and with the help of the monolithic Tea Party to mandate E-Verify nationwide. This will mean the propagation of E-Verify, with audits on all manner of business, including contractors and sub-contractors in every occupation. American labor must unite to uncover unscrupulous companies from large to small, who are using discount services. More and more patriotic Citizens and residents are joining other "Whistle Blowers" in contacting ICE and local police, of illegal aliens working in construction, manufacturing and thousands of other industries.

    Another issue that many states see as a major peril to our sovereignty rights is illegal aliens using the absentee ballot system to vote in elections. New York, Colorado, New Jersey, Texas are being investigated by state Attorney General commissions. Acorn is still a major player and although dissolved on paper, is still involved in the registration racket. There are occurrences in California and Nevada of manipulation of voter rolls.

    Can any American citizen or green card holder imagine what this country was like thirty years ago, before the illegal immigrant invasion? How many hundreds of billions of dollars, perhaps even a Trillion in three decades? Fewer illegal aliens meant fewer taxes to support the huge support mechanism that we have today? An example would be California, was a less congested place, where there was room to breathe? Just think were those taxes to subsidize illegal immigrants today could be highly beneficial, if it was spent on our own population. Education, for instance is forced on us, by a federal court that we must pay the schooling for every child of illegal immigrants. Then we have health care that the courts say, that anybody who breaks the law to come here is entitled to treatment. Remember in1912 the Titanic sunk, but not because of the iceberg above the Atlantic Ocean, but what was ominously concealed beneath the surface?

    This is the same story with illegal immigration and the failure to place, 5000 "boots on ground. “of the each border States Nation Guardsman permanently? I was astounded to read a "Wikileaks" secret document, that the border is intentionally left open for the clandestine arrangement to merge Canada, Mexico and the United States. You have a chance to read these reports at Wikileaks website, under the headline, "Viewing cable 05OTTAWA268, PLACING A NEW NORTH AMERICAN INITIATIVE." This is a serious situation concocted by the Canadian Paul CELLUCCI and American Ambassador, which seems to never have been observed by Congress.

    From both parties are hundreds of thousands, tens of millions finding that the TEA PARTY, doesn't discriminate against race or religion. That these people are delusion by the Liberals, democrats and Republicans, that are not doing enough to stop the in-sourcing of illegal immigrants or outsourcing of jobs to foreign countries. Cafta and Nafta was a massive mistake as the whole “FREE TRADE AGEEMENTS” have been detrimental to our society. We are importing everything from a nail file to steel, at far below the cost of doing business here? Once a lender of billions of dollars, we must now go cap in hand to Communist China, that owns our debts. We are the greatest market in the world, but our commerce is undercut by artificially engineering their currencies. The only winners in this commercial game are the importers of inferior products, who are profiting.

    As Billionaire Donald Trump we should place a 25 % import tax on everything coming to our country, and begin to rebuild our manufacturing industries again. An intentional failure of every administration to secure our borders or enact laws that would obstruct foreign national at the border, or a tracking system to deport visa overstays. E-Verify will eradicate this problem of the issuance of a Secure Communities law, to enforce that every police department fingerprint and send those scans to ICE. If you want less government, a fair Tax system, individual responsibility and the return of federal excessive power to the states, join the Tea Party in your local area. Tell your Federal, State or local lawmaker, unless they join the TEA PARTY, they will be out of office in 2012.

    Contact them at Senate—202-224–3121/ House—202-225–3121.

    NO Copyright. Copy & Paste! Distribute Freely

  • EscapedWestOfTheBigMuddy||

    So, what exactly are the implications if we can flush e-verify somehow?

    I mean, that is a worthy goal in and of itself, as no free individual should have to ask permission of the government to work.

  • ||

    no illegal alien has the right to work in the US as stipulated by the United States Constitution - employment of an illegal alien is a federal misdemeanor

  • ||

    1. There is nothing in the Constitution that empowers the US to govern private employment.

    2. There is nothing in the Constitution that empowers the US to govern immigration.

    3. The Constitution recognizes rights: it does not define them.

    I will grant that a US government that was behaving constitutionally would have easily amended the Constitution to take care of (1) and (2). But (3) cannot be changed: Illegal aliens do have the right to work in the US -- that right being subsumed in the individual rights of property and association -- regardless of what the United States Constitution says. The government simply abrogates that right.

  • MacGhil||

    Slavers.

    We play tax collector, social worker (via child support payments) and med. ins. provider, and ICE agent, all for free.

    The second so-called solution that drew Goldwater’s ire would have penalized an employer who knowingly hires illegal immigrants. He suggested that “these employer sanctions” are “discriminatory and could raise possible violations of civil rights of potential employees. It is the government, not the employer, who should bear the main responsibility of determining who is here legally and who is not.

    http://azcapitoltimes.com/news.....ebate-hasn’t-changed-in-30-years/

  • Nike Dunk High Women||

    thanks

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