South Carolina legislators are in a wait-and-see mode regarding the Supreme Court’s treatment of Arizona’s statute, which invalidates the license of a business that hires illegal immigrants. Yesterday the Supreme Court began hearing arguments in Chamber of Commerce v. Whiting about the law. The issue that the Supreme Court is trying to resolve is whether or not Arizona’s law is preempted by the federal law that makes the federal government the exclusive body regulating immigration decisions.
Arizona state legislators are arguing that this is a licensing scheme as opposed to an immigration enforcement scheme in order to avoid preemption; however, that argument appears tenuous. The initial step of determining the alien illegal under federal provisions to enforce state law is where the Arizona law could prove problematic. As Justice Sotomayor stated, “You don’t doubt that if the Federal Government found someone guilty of hiring illegal aliens the state could revoke its license to do business. So, what we’re talking about is the adjudication process.”
The problem for the Arizona law is that the federal government has already established an adjudication process for illegal aliens. Coupled with that, the Arizona adjudication process is suspect due to the inherent risk of discriminatory practices. For instance, if a state agent discriminates based on a worker’s accent or aesthetic to request documentation nothing happens, but if the worker is determined to be illegal the company’s business license will automatically be revoked. There are many facets of this case that the Supreme Court will have to sort out, and it will be interesting to see if state laws, including South Carolina’s, will pass muster based on the Supreme Court’s imminent decision.