Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Supreme Court Assesses State Immigration Policy
Julia K. Stronks
June 17, 2011
by Julia K. Stronks
In May the Supreme Court handed down its first decision assessing new immigration laws passed by states across the nation. The Court upheld Arizona’s law requiring employers to use the federal E-Verify system for new hires and sanctioning businesses that hire undocumented workers. The case seems to address relatively straightforward issues concerning a state’s right to license businesses and the interpretation of a phrase in a federal law. However, it also highlights concerns related to justice and immigration policy.
In U.S. Chamber of Commerce v. Whiting the question was to what extent federal immigration law pre-empts a state from having its own law punishing employers for hiring those who do not have the legal right to work in our country. The federal law clearly pre-empts states from developing their own law in this area, but it provides an exception for “licensing and similar laws.” Arizona’s law, according to the Court, fell under the licensing exemption. Additionally, although under federal law use of the E-Verify system is voluntary, the Court said that Arizona did not run afoul of the federal law simply by making the E-Verify system mandatory for businesses in its state.
On the face of it, the majority opinion seems to fit within parameters many of us use to assess the justice of our immigration policy. From a Christian perspective a just immigration policy has to balance a number of different concerns. Many scholars argue that the first consideration has to be imago dei: all people are made in the image of God. This suggests that immigration policy can’t be purely open border because our nation has the responsibility to provide for the safety and job security of its citizens. At the same time, our laws must recognize the human dignity of undocumented residents, and we must consider the reason that people from poorer nations want to immigrate to the United States. Second, rule of law is an important consideration for a just society because this enables us to protect life and secure room for people and institutions to flourish. Our rules must be applied in an even-handed way, and we must ensure everyone has access to the tools needed to challenge unfair application of the rules. Third, the Reformed perspective on sphere sovereignty and the Catholic tradition of subsidiarity both suggest we must pay attention to which issues fall into the appropriate sphere of businesses, state government, the federal government and other institutions.
The majority opinion in Whiting emphasized the role of the federal and state governments, recognizing that while immigration is normally the province of the federal government, in this case the federal government had made room for contributions by the state. However, a closer reading of the case reveals some problems. Justice Breyer, in his dissent, argued that the majority had misread the intent of Congress in crafting the licensing exemption. But, more importantly, as noted in the Breyer dissent, almost 20% of the workers rejected by the E-Verify system as "unemployable" do in fact have the legal right to work in the U.S.
While careful readers of Supreme Court decisions might agree with the majority on its federalism argument, all of us must, nonetheless, educate ourselves carefully about the impact of the policies our state and federal governments are passing. The coming years will bring dozens of court cases on immigration policy. We will face cases concerning asylum, health care and driving privileges for undocumented residents, a challenge to Alabama’s new law that denies those residents education beyond high school, potential challenges to the Dream Act proposed by President Obama, and cases involving Arizona’s laws requiring police to determine citizenship of some of those they lawfully stop. Immigration reform is a complex and difficult task that requires careful balancing of many different interests.
Those of us calling for “just immigration policy” need to get more detailed and specific if we hope to contribute to this important task.
—Julia K. Stronks has a law degree and is a professor of political science at Whitworth University in Spokane, Washington. She is working on a longer piece analyzing state and federal immigration policy in more detail.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”