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Reproduced with permission from Law360. Copyright © Portfolio Media, Inc.

By Ian Macdonald

On June 25, 2012, the U.S. Supreme Court issued a split decision regarding Arizona’s 2010 immigration law, Senate Bill (SB) 1070. The court made clear that the federal government sets immigration policy and states will not be allowed to preempt federal powers.

States may, however, continue to require businesses to register for and use E-Verify. Recent debate makes it clear that neither U.S. Congress nor states will be allowed to ignore immigration issues.

In its decision, the Supreme Court recognized the challenges that Arizona faces as a result of undocumented workers. The court made it clear, however, that Arizona could not preempt federal law. The court struck down Section 3 of the Arizona law, which made it a crime for an individual to fail to apply for and carry proper immigration documentation showing lawful status.

The court also struck down Section 5, which made it illegal for an undocumented individual to apply for and perform work, and Section 6, which authorized the warrantless arrest of individuals where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

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In a 5-3 decision, the Supreme Court struck down a significant part of the Arizona immigration law on the grounds that those provisions were preempted by federal law. In Arizona v. United States, the Court held that three of four contested provisions of the state law – Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) – are preempted by existing federal statutes. Among the invalidated sections was the provision making it a state crime for an unauthorized worker to apply for work or be employed in the state. Though the Court eviscerated this attempt by Arizona to mitigate the substantial deleterious effects of illegal immigration on the safety and well-being of its citizens, Justice Anthony Kennedy, writing for the majority, made it clear that Arizona’s concerns are well-founded and that Congress has both substantial power and substantial responsibility to address Arizona’s concerns and those of its sister states. To learn more about the decision and its potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

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By Neil M. Alexander and Michael J. Lehet

In our July 2010 ASAP Update, Littler discussed the federal district court decision temporarily enjoining enforcement of certain provisions of Arizona's controversial "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070"). On April 11, 2011, the Ninth Circuit Court of Appeals issued an opinion affirming the district court ruling.

Like the district court decision, the Ninth Circuit opinion does not impact those provisions of SB 1070 that amend the Legal Arizona Workers Act (LAWA). Consequently, LAWA will continue to provide an entrapment defense to employers charged with knowingly or intentionally hiring undocumented workers. LAWA will also continue to require that employers keep a record of each E-Verify verification. Furthermore, the Ninth Circuit opinion does not affect the language of SB 1070 making it a Class 1 Misdemeanor for occupants of a motor vehicle stopped on a street, roadway, or highway, to hire and pick up, or attempt to hire and pick up, passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.

The opinion is the second Ninth Circuit decision to weigh in on Arizona's recent immigration debate. As explained in our September 2008 ASAP, Ninth Circuit Court of Appeals Upholds Legal Arizona Workers Act, the court previously sided with the district court and ruled that LAWA was constitutional. That decision is currently on review before the U.S. Supreme Court. A ruling from the high court is expected within the next several months.

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Arizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

• making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
• requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
• requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

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As discussed here previously, legislators in many states have been introducing legislation mimicking Arizona’s controversial immigration legislation, SB 1070. In the past week, such legislation has progressed, albeit slightly, in South Carolina, but has been taken off the table in Colorado.

In South Carolina, The Sun News reported that S. 20, an Arizona-style immigration bill introduced by Senator Lawrence Grooms, was moving forward. However, after clearing the State Senate Judiciary Committee, the bill failed to garner sufficient votes to set it for Special Order, i.e., moving the bill to the top of the calendar. Accordingly, it is presently unknown when the bill will be voted on by the entire State Senate.

In Colorado, the sponsor of House Bill 1107, Rep. Randy Baumgardner, abandoned his attempt to institute an Arizona-like law, believing that legal challenges would burden taxpayers, reports Fox News Latino. On February 14, the House Committee on Agriculture, Livestock, & Natural Resources indefinitely postponed the bill. As we previously noted, a group of Republican Colorado lawmakers recently traveled to Arizona to learn more about its approach to immigration legislation.

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On July 28, 2010, the U.S. District Court for the District of Arizona issued a highly anticipated order in United States v. State of Arizona, a recent federal lawsuit challenging the constitutionality of the Arizona “Support of Law Enforcement and Safe Neighborhoods Act” (“SB 1070”). The order temporarily enjoins enforcement of certain provisions of SB 1070 pending the court’s final ruling in the matter. To learn more, please continue reading Littler's ASAP, What Arizona's Controversial Immigration Law Means for Employers, by Neil M. Alexander and Michael J. Lehet.

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The Washington Post reports that acting Solicitor General Neil Katyal has submitted a brief (pdf) on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act (LAWA), a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants (Note: LAWA is a different law than Arizona’s recently enacted and controversial immigration enforcement law.). The petition (pdf) for Supreme Court review was originally filed by a coalition that includes the U.S. Chamber of Commerce, civil libertarians and Latino groups.

The brief presents the administration’s position that federal law preempts this state law, and argues that upholding the law would:

"disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country."

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The Arizona Daily Star reports that several days after S.B. 1070, Arizona’s controversial immigration bill, became law, the legislature passed H.B. 2162, which clarifies when police officers may inquire into an individual’s immigration status. Under H.B. 2162, an inquiry can occur if:

• an officer performs a lawful stop, detention or arrest based on a town, city, county or state law; and
• the officer has reasonable suspicion that a person is an alien and is unlawfully present in the United States.

The language in H.B. 2162 does not amend S.B. 1070; however, when S.B. 1070 takes effect, the revised language in H.B. 2162 will take precedence because it was adopted more recently.

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With many in the nation watching, Arizona Governor Jan Brewer signed the "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070") into law. The legislation represents Arizona's latest effort to combat illegal immigration and is now the centerpiece of a national political firestorm, including criticism from President Obama and numerous public interest groups. In addition, SB 1070 already is the subject of two federal lawsuits challenging its constitutionality. Lost among this debate, however, are those provisions of the law directed toward Arizona employers. To learn more about the law and its implications for employers, please continue reading Littler's ASAP What Arizona's Controversial Immigration Law Means for Employers by Neil M. Alexander and Michael J. Lehet.

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Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the “broadest and strictest immigration measure in generations.” The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure’s legality.

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A controversial Arizona immigration enforcement bill (S.B. 1070) moved one step closer to becoming law when the state senate approved the measure on April 19. The bill has been sent to Governor Jan Brewer for her signature or veto. As reported by The Los Angeles Times, most observers expect her to sign the bill. Brewer has until April 24 to act on the bill; if she neither signs nor vetoes the bill, it will become law within 90 days of the end of Arizona’s legislative session.

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The New York Times reports that Arizona legislators have given preliminary approval to legislation that primarily concerns State enforcement of federal immigration laws. H.B. 2632, which is nearly identical to a bill passed in February by the state senate (S.B. 1070), would, among other things, allow police officers to charge illegal immigrants with criminal trespassing based solely on their presence in Arizona. The two bills must now go through reconciliation, which is expected to occur within the next two weeks.

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AZCapitolTimes.com reports that Arizona’s senate, by a party-line 17-13 vote, passed a broad, immigration-focused bill covering a wide range of topics including law enforcement procedures, criminal law, and traffic congestion. The bill would:

• require police officers to make a reasonable attempt to determine a person’s immigration status when “practicable;”
• allow illegal immigrants to be charged with trespassing;
• make it unlawful for anyone seeking work, regardless of their immigration status, to enter a vehicle stopped on the street;
• penalize drivers who impede traffic in an attempt to hire a day laborer;
• prohibit state and local governments from adopting policies that restrict the enforcement of immigration laws; and
• require state and local governments to comply with, and assist in enforcing, federal immigration laws.

The bill now moves to Arizona’s house of representatives for consideration.

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The U.S. Supreme Court has asked the Solicitor General to submit a brief outlining the Obama administration’s stance on an Arizona law that punishes companies for hiring illegal immigrants, the Miami Herald reports. The justices will review this brief before deciding whether to hear a challenge to the law.

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