11/4/2009 5:37:00 PM Attorney fearful Obama administration will weigh in on Arizona's employer sanctions law
By Howard Fischer Capitol Media Services
PHOENIX -- One of the key attorneys fighting Arizona's employer sanctions law is hoping the Obama administration keeps politics out of its legal opinions of the statute.
David Selden, who represents business interests, said Tuesday he is heartened by the decision this week by the U.S. Supreme Court to seek the views of the federal solicitor general on whether the 2-year-old law is an illegal infringement on the power of the federal government. Selden said he believes that Elena Kagan, a top attorney in the Department of Justice, will conclude that the state law has to be voided.
But Selden acknowledged that presumes the administration sees things the way he and his business clients want.
"It does put the Obama administration in the position of having to take a stand as to what the view of the administration are with respect to illegal immigration,' he said.
The issue has created an usual alliance of businesses, now being led by the U.S. Chamber of Commerce, and various Hispanic and civil rights organizations, some of who are seen as friendly to the administration and some which are not.
Both object to the law, which requires companies to determine the legal status of new workers through the federal government's E-Verify online database. The law also allows a state judge to suspend -- and potentially revoke -- the ability of any company found guilty of knowingly hiring undocumented workers to do business in Arizona.
And the request for administration input comes as Obama has promised to make the issue of illegal immigration one of its top priorities for the coming year.
"I would hope that this is going to be a legal issue, not a political issue,' Selden said. "But there's some mixture of both.'
And the question of whether Arizona lawmakers acted illegally could be colored by another factor: It was Homeland Security Secretary Janet Napolitano who, as governor, signed Arizona's employer sanctions statute into law.
Steve Wilson, a spokesman for state Attorney General Terry Goddard, said no one should read anything into the move by the high court to seek the input of the federal solicitor general. And Wilson, whose office is defending the state law, declined to say what role, if any, politics might play in the administration's legal position.
Central to the question facing the high court is exactly what Congress meant in approving the 1986 Immigration Reform and Control Act. That law specifically precludes states and cities from imposing any civil or criminal penalties on companies for their hiring practices.
But Congress did provide an exemption for "licensing and similar laws.'
Based on that, both a federal trial judge in Phoenix and, last year, the 9th U.S. Circuit Court of Appeals ruled that Congress specifically allowed states to enact exactly the kind of laws that Arizona has passed -- and to impose the kind of penalties the state law allows.
The judges also rejected the contention that state lawmakers acted illegally in requiring employers to use the E-Verify system and to fire those found not to be in this country legally. And they concluded there are sufficient legal protections in the law for companies charged with hiring undocumented workers to allow them to argue to a judge that they did not, in fact, violate the law.
Selden said he believes a case can be made to the U.S. Supreme Court that Congress never intended for there to be a "patchwork of state and local laws' dealing with undocumented workers.
Still, challengers to the law face the hurdle that Congress did, in fact, include that exemption for licenses.
It is that exemption that Arizona lawmakers used to draft the law permitting judges to put firms out of business. Selden said, however, he believes the high court can be convinced that legislators here are reading too much into that exemption.
"It makes no sense for Congress to have written a law ... to mean that you can take away a person's business license but you cannot fine them $100,' he said. In essence, Selden said, that creates a law "where the only penalty is business capital punishment on an issue where Congress clearly intended to balance the immigration enforcement very carefully against the anti-discrimination provisions' of the law.
He said businesses read the license exemption to permit the state to deny or revoke operating authority of any firm, which has previously been found guilty in a federal proceeding of violating immigration law. Selden said there was never any intent to let local prosecutors investigate possible violations or for state judges to determine guilt or innocence.
