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10/6/2010 8:49:00 AM
Four Arizona cases on docket at U.S. Supreme Court

Howard Fischer
Capitol Media Services

PHOENIX -- The nation's high court will decide three -- and likely four -- Arizona disputes in its new session.

Two hearings already are scheduled for next month, one involving a spat between the Tohono O'odham Nation and the U.S. government, the other to decide the legality of state tax credits to help children attend private and parochial schools.

In December the justices will review a 3-year-old law which allows state judges to decide if Arizona firms have knowingly hired undocumented workers and, if so, to suspend their licenses or put them out of business.

And the court has all but decided to review the matching funds provision of the state's public financing of elections law. They already have indicated they have a problem with a federal appeals court ruling declaring the funding legal: The justices banned distributing matching funds for the current election, changing the rules in the middle of the campaign.

Potentially the most controversial -- and the most significant -- is the challenge of what has become known as the employer sanctions law.

The measure is Arizona's attempt to dry up the supply of jobs as a way of deterring illegal immigration.

But the Immigration Reform and Control Act, approved by Congress in 1986, precludes states and cities from imposing any civil or criminal penalties on companies for hiring illegal immigrants. But the same law allows states to have their own "licensing or similar laws.'

The state law, formally known as the Legal Arizona Worker Act seeks to fit that exception by going after all state licenses. Both a trial judge and the 9th Circuit Court of appeals agreed.

Business groups, joined by some civil rights organizations, said that's misreading the law.

Attorney Julie Pace said states can take away licenses. But she said a firm first must be found guilty of knowingly hiring illegal immigrants by a federal court or through a similar process. Pace contends state judges lack legal authority to make that decision.

The newest justice, Elena Kagan, will not participate in this hearing before the Department of Justice filed its own objection to the Arizona law while she was still solicitor general.

If the justices say the employer sanctions law is preempted by federal statutes, that likely means the demise of SB 1070, approved earlier this year, which gives police more power to detain and arrest illegal immigrants. A federal judge already placed key provisions on hold, saying they likely run afoul of federal law.

The tax credit case involves a 1997 law allowing Arizonans to get a dollar-for-dollar offset from what they owe the state in income taxes for money they donate to organizations that provide scholarships for private and parochial schools.

Individuals have been able to divert up to $500 a year, and couples double that. Legislation signed earlier this year by Gov. Jan Brewer will allow that to be adjusted annually for inflation.

In the 2008 tax year, the most recent numbers available, Arizonans diverted more than $55.2 million to scholarship organizations. A separate law that gives similar dollar-for-dollar credits to corporations cost another $10.8 million in revenues.

In a 2002 ruling, the U.S. Supreme Court upheld an Ohio law that provided vouchers of taxpayer funds to parents to send their children to any school they want, even parochial schools.

What's different in this case, and what the 9th Circuit found objectionable, is that the organizations that accept the donations and give out the aid can decide where those scholarships can be used. And the largest organizations give scholarship vouchers to parents only if they agree to send a child to a religious school.

Another case Kagan has recused herself from is a dispute between the Tohono O'odham Nation and the federal government.

By law, the government manages the nation's lands and holds income derived from that land in trust. That includes income from the sale of natural resources as well as leases.

The lawsuit contends the United States handled $2.1 billion in transactions for the nation between 1972 and 1992 and "has never fulfilled its duty to provide a true and adequate accounting' of the trust funds. It also alleges "gross mismanagement' by the federal government.

But the issue before the high court isn't the merits of the case. It is the question of whether the tribe, which brought a similar action in a different case and in a different court, can pursue this one.

A federal appeals court said the two are sufficiently different, as one seeks an accounting and the other seeks specific monetary damages.

The last Arizona case is one the high court has, at this point, agreed only to consider legal briefs.

A 1998 law allows candidates for statewide and legislative office to obtain public funds if they agree not to solicit private donations. It also provides a dollar-for-dollar match if their privately funded foes spend more.

Challengers, all running with private dollars, said that limits their free-speech rights because it deters them from spending more of their own cash knowing it means more for their publicly financed opponents. They also said donors won't give them money if they know it also helps their foes.

In an order earlier this year the high court upheld a restraining order issued by a federal judge in Phoenix barring the matching funds. But the justices have not formally decided if they will review a federal appeals court decision finding the matching funds constitutional.

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Reader Comments

Posted: Wednesday, October 6, 2010
Article comment by: Border Raven

While the federal government may have original jurisdiction to enforce federal immigration laws, and declare war, the federal government does not have exclusive jurisdiction to enforce federal immigration laws. Under laws enacted by Congress, states have concurrent jurisdiction and are requested and encouraged to assist the enforcement of federal immigration laws. US States are encouraged to engage in war, if invaded.
See: Article 1 Section 10, Clause 3 and Article 4 Section 4.

Article 1 Section 10 of the US Constitution says, [PARAPHRASED]
"every state in the union, shall, without the Consent of Congress, keep Troops, or Ships of War in time of Peace, or engage in War, when actually invaded, or in such imminent Danger as will not admit of delay."

Article II, section 3, of the US Constitution says, [PARAPHRASED] "The President, shall take Care that the Laws be faithfully executed."

Article 4 Section 4 of the US Constitution says, [PARAPHRASED] "every state in the union, is responsible to every state in the union, for securing our union against invasion."

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