In Chamber of Commerce v. Whiting yesterday, the Supreme Court obliterated the Obama administration’s ludicrous position (with apologies to the Chamber of Commerce, which lost its usually perspicacious way on this one) that a state may not withdraw a business license from employers who knowingly or intentionally hire illegal aliens. The whole controversy was nonsense. The Chamber and Obama had argued that federal law prohibits states from sanctioning employers in that way, even though — get this — the law they cited explicitly allowed states to enforce rules against hiring illegals through “licensing and similar laws.” In pursuit of its extremely pro-immigration ideological agenda — which will be put to an even bigger and more politically explosive test in another Arizona case next year — the administration argued that the exact words of a federal statute should be ignored in order to read that statute as preventing state action meant to dovetail with and complement, not undermine, those very same federal immigration laws. Writing for a 5-3 majority, Chief Justice Roberts concluded that no ambiguity exists at all: “the plain wording of the clause,” “on its face,” supported Arizona’s contention that it was operating entirely within the law.
As Ed Whelan noted at Bench Memos, Roberts got in a very sharp dig at the dissenting justices (and at the administration) by noting that two dissents read the clauses at issue in completely different ways. His footnote is worth quoting, with my bolded emphasis added:
JUSTICE SOTOMAYOR creates an entirely new statutory requirement: She would allow States to impose sanctions through“licensing and similar laws” only after a federal adjudication. Such a requirement is found nowhere in the text, and JUSTICE SOTOMAYOR does not even attempt to link it to a specific textual provision. It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text.
As The Washington Times argued last December, a decision in favor of Arizona in this case means that in the more explosive case next year, “the administration’s argument… falls apart.” The Washington Times’ conclusion also stands: “States retain certain authority unless Congress expressly says otherwise. Arizona is right to insist that the Constitution is meant to limit federal power.”
Hans von Spakovsky of the Heritage Foundation notes some solace for businesses worried that they could lose their licenses over a mere mistake in hiring, rather than willful or flagrant violation of immigration laws: “As the Chief Justice pointed out, there is no sanction against employers for merely hiring unauthorized workers. The state law’s sanctions are only triggered if an employer hires such a worker intentionally, knowing that they are not authorized to be employed. An employer acting in good faith need not have any fear of being sanctioned, especially since they enjoy a safe harbor from liability if they use the federal E-Verify system to check on prospective employees.”
In a different piece, this from the Washington Examiner, von Spakovsky gives evidence of the practical reasons that the states’ authority in this regard is so important: The administration is flat-out refusing to enforce immigration laws on its own.
One can be moderate on the overall subject of immigration, supporting streamlined processes for legal immigration, while insisting that the law actually be enforced against those who break it. Culturally, too, legal immigrants (it stands to reason) are more willing to acclimate to American society and to our language, more willing to become more fully Americans as earlier waves of immigrants did; illegals tend (by my observation) to be more separatist, less assimilated, and even resentful. Is it too much to ask for the federal government to allow states to take reasonable steps to guard against the worst abuses from waves of unassimilated aliens, if the feds themselves won’t do it?