Political Buzz May 26, 2011: Supreme Court Rules 5-3 to Uphold Arizona Immigration Law — US Chamber of Commerce v. Whiting

POLITICAL BUZZ

By Bonnie K. Goodman

Ms. Goodman is the Editor of History Musings. She has a BA in History & Art History & a Masters in Library and Information Studies from McGill University, and has done graduate work in history at Concordia University.

COURT AND LEGAL NEWS:

John Roberts is pictured. | AP Photo

SCOTUS Chief Justice John Roberts: The law “expressly reserves to the states the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws,” Chief Justice John Roberts wrote. “It uses the federal government’s own definition of ‘unauthorized alien,’ it relies solely on the federal government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the federal government’s own system for checking…

  • Supreme Court backs Arizona immigration law: The Supreme Court today upheld an Arizona law penalizing companies that hire illegal immigrants, rejecting a challenge by business groups and civil liberties organizations, our court correspondent Joan Biskupic reports.
    U.S. Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, released a statement supporting the ruling: “Not only is this law constitutional, it is common sense. American jobs should be preserved for Americans and legal workers.”
    The Associated Press reports that Chief Justice John Roberts, writing for a majority made up of Republican-appointed justices, said the Arizona’s employer sanctions law “falls well within the confines of the authority Congress chose to leave to the states.”
    Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, all Democratic appointees, dissented. The fourth Democratic appointee, Justice Elena Kagan, did not participate because she worked on it while serving as President Obama’s solicitor general.
    The law permits the state to take away the business licenses of companies that knowingly hire illegal workers. It requires employers to use an otherwise optional federal verification program, known as the E-Verify system, which collects data on workers from the Social Security Administration and Department of Homeland Security.
    The ruling, by a 5-3 vote, comes off oral arguments presented in December. Reporting on those arguments, Biskupic had noted that the court “appeared poised … to uphold” the law.
    The U.S. Chamber of Commerce and the Obama administration had opposed the law…. – USA Today, 5-26-11
  • Supreme Court Upholds Arizona Immigration Law: The Supreme Court today backed an Arizona law that sanctions businesses that hire illegal immigrants.
    On a 5-3 vote, the court held that federal immigration law does not preempt Arizona from suspending or revoking the licenses of businesses that violate state immigration law.
    Chief Justice Roberts wrote the 27-page opinion, which can be found here. And here’s a report from WSJ.
    Then-Gov. Janet Napolitano signed the Arizona law in 2007, saying that while immigration is a federal responsibility, Arizona had been forced to deal with the issue because the demand for cheap, undocumented labor in the state was contributing to illegal immigration…. – WSJ, 5-26-11
  • Supreme Court sustains Arizona employer sanctions law: The Supreme Court has sustained Arizona’s law that penalizes businesses for hiring workers who are in the United States illegally, rejecting arguments that states have no role in immigration matters.
    By a 5-3 vote, the court said Thursday that federal immigration law gives states the authority to impose sanctions on employers who hire unauthorized workers.
    The decision upholding the validity of the 2007 law comes as the state is appealing a ruling that blocked key components of a second, more controversial Arizona immigration enforcement law. Thursday’s decision applies only to business licenses and does not signal how the high court might rule if the other law comes before it.
    Chief Justice John Roberts, writing for a majority made up of Republican-appointed justices, said the Arizona’s employer sanctions law “falls well within the confines of the authority Congress chose to leave to the states.”
    Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, all Democratic appointees, dissented. The fourth Democratic appointee, Justice Elena Kagan, did not participate in the case because she worked on it while serving as President Barack Obama’s solicitor general
    Breyer said the Arizona law upsets a balance in federal law between dissuading employers from hiring illegal workers and ensuring that people are not discriminated against because they may speak with an accent or look like they might be immigrants.
    Employers “will hesitate to hire those they fear will turn out to lack the right to work in the United States,” he said…. – AP, 5-26-11
  • Justices Uphold Law Penalizing Hiring of Illegal Immigrants: The Supreme Court on Thursday upheld an Arizona law that imposes harsh penalties on businesses that hire illegal immigrants.
    The 5-to-3 decision amounted to a green light for vigorous state efforts to combat the employment of illegal workers. The majority opinion, written by Chief Justice John G. Roberts on behalf of the court’s five more conservative members, noted that Colorado, Mississippi, Missouri, Pennsylvania, Tennessee, Virginia and West Virginia had recently enacted laws similar to the one at issue in the case.
    The decision did not directly address a second, more recent Arizona law that in some circumstances requires police there to question people they stop about their immigration status. The United States Court of Appeals for the Ninth Circuit blocked enforcement of that law in April, and the case may reach the Supreme Court soon.
    The challenge to the older Arizona law that was the subject of Thursday’s decision was brought by a coalition of business and civil liberties groups, with support from the Obama administration. They said the law, the Legal Arizona Workers Act, conflicted with federal immigration policy.
    The decision turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” unauthorized aliens…. – NYT, 5-26-11
  • Supreme Court upholds Ariz. law punishing companies that hire illegal immigrants: The Supreme Court on Thursday ruled that Arizona may revoke the business licenses of companies that knowingly employ illegal immigrants, rejecting arguments that the state’s law intrudes on the federal government’s power to control immigration.
    The court ruled 5 to 3 that Congress specifically allowed states such an option, and dismissed the objections of an unusual coalition that challenged the state law: the U.S. Chamber of Commerce, civil rights groups, labor unions and the Obama administration.
    The 1986 federal Immigration Reform and Control Act generally preempts states from using employer sanctions to control immigration. But Arizona took advantage of a parenthetical clause in the statute — “other than through licensing and similar laws” — to go after companies that knowingly and intentionally hired undocumented workers.
    Chief Justice John G. Roberts Jr. agreed with the state’s reading of the federal law.
    “It makes little sense to preserve state authority to impose sanctions through licensing, but not allow states to revoke licenses when appropriate as one of those sanctions,” he wrote.
    Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed with the outcome.
    The law at issue — the Legal Arizona Workers Act — is different from a more recent Arizona law that the Obama administration is battling in lower courts…. – WaPo, 5-26-11
  • SCOTUS upholds Arizona immigrant hiring law: The Supreme Court ruled Thursday to uphold Arizona’s law that penalizes companies that knowingly hire illegal immigrants.
    In a 5-3 vote, the court concluded that federal immigration law doesn’t prevent the state from revoking the business licenses of companies that violate state law.
    Chief Justice John Roberts wrote in the majority opinion that the court had come to its decision because “the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law.”
    The Arizona law also requires employers to use the federal government’s web-based E-Verify system to determine whether potential employees are eligible to work within the United States. The court upheld this provision, saying it is “entirely consistent” with federal law…. – Politico, 5-26-11
  • US states can shut firms with illegals: Supreme Court: The US Supreme Court ruled Thursday that a state has the right to revoke the license of a business that knowingly employs illegal immigrants, in a case watched for implications on related judicial battles.
    The top US court in a 5-3 decision upheld Arizona’s 2007 law, saying the state was within its rights under a 1986 federal immigration reform measure.
    The ruling comes amid a legal battle on another Arizona law that took effect last July and which makes it a crime to be in the state, which borders Mexico, without proper immigration papers.
    In Thursday’s decision, the court cited the federal Immigration Reform and Control Act of 1986, which preempts state or local law imposing civil or criminal sanctions other than through licensing and similar laws on firms that employ, recruit, or refer unauthorized aliens for employment.
    The law “expressly reserves to the states the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws,” Chief Justice John Roberts wrote.
    “It uses the federal government’s own definition of ‘unauthorized alien,’ it relies solely on the federal government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the federal government’s own system for checking employee status.”… – AFP, 5-26-11
  • ‘Business death penalty’ for hiring illegal workers is upheld by Supreme Court: The 5-3 decision gives states more authority to act against illegal immigrants. Justices rule that states can take away the business licenses of companies that knowingly hire illegal immigrants.
    The Supreme Court on Thursday gave Arizona and other states more authority to take action against illegal immigrants and the companies that hire them, ruling that employers who knowingly hire illegal workers can lose their license to do business.
    The 5-3 decision upholds the Legal Arizona Workers Act of 2007 and its so-called business death penalty for employers who are caught repeatedly hiring illegal immigrants. The state law also requires employers to check the federal E-Verify system before hiring new workers, a provision that was also upheld Thursday.
    The court’s decision did not deal with the more controversial Arizona law passed last year that gave police more authority to stop and question those who are suspected of being in the state illegally. But the ruling is likely to encourage the state and its supporters because the court majority said states remained free to take action involving immigrants…. – LAT, 5-26-11

Q & A: Did Republicans Apply an Ideological Test to Bill Clinton’s Supreme Court Nominees?

HISTORY ARTICLES

HISTORY, NEWS & POLITICS

HNN, 7-25-05

Did Republicans Apply an Ideological Test to Bill Clinton’s Supreme Court Nominees?

By Bonnie Goodman

Ms. Goodman is a graduate student at Concordia University and an Assistant Editor at HNN.
Even before he selected Appellate Court Judge John G. Roberts for the Supreme Court President Bush argued that any person he nominated would deserve “a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote.” To many Republicans that meant that the nominee’s ideology should not be put on trial. If the nominee was qualified he or she should be confirmed. After Judge Roberts was selected Republicans argued that he was possibly one of the most qualified candidates for the bench that had ever been put forward. The obvious conclusion was that he should perforce be approved by the Senate forthwith.

What has been the standard used in the past to measure nominees to the Supreme Court of the United States?

The Bork Legacy

In 1987 President Ronald Reagan nominated Robert Bork to the Supreme Court. After tumultuous hearings, which marked a turning point in the history of judicial nominations, Bork was turned down by the Senate. Since the founding of the Republic the Senate has rejected just a dozen nominees to the Court. But Bork’s rejection came after a highly charged battle over his ideology. This was unprecedented. The fireworks over his ideology began immediately. Within an hour of his selection, Senator Edward M. Kennedy (D-Mass.) took to the Senate floor to denounce Judge Bork’s views on civil rights and abortion and argued, “No nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him.” As Leonard Gross and Norman Vieira, co-authors of Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations, have noted, “The Bork proceedings clearly established a firm precedent for ideological inquiries and for the rejection of judicial nominees, at least in some instances, on purely ideological grounds.” One of the consequences was that presidents afterward would be tempted to nominate individuals who had not left a long paper trail of opinions. Bork had and he had been reproved and rejected.

Ruth Bader Ginsburg

After Justice Byron White announced his retirement on March 19, 1993, President Bill Clinton decided to nominate Ruth Bader Ginsburg as the second woman justice of the Supreme Court. When her nomination went to the Senate for confirmation Sen. William Cohen (R-Maine) stated bluntly that the nominee’s ideology was rightly a matter of concern. But Cohen suggested during the hearings that judicial ideology should be used only to determine if the nominee’s philosophy is “so extreme that it might call into question the usual confirmation prerequisites of competency and judicial temperament.” Sen. Arlen Specter (R-Pa.) was not pleased with the advance praise of Ginsburg by many senators and argued that “a coronation in advance is not in the best interest of the system.”

Although Ginsburg’s confirmation seemed almost assured the Senate did consider her positions on liberal issues. When asked about her position on abortion Ginsburg was forthright, becoming the first nominee to expressly confirm that she believed in a woman’s right to abortion. Despite her frank admission, few Republicans took the position that her embrace of abortion rulings disqualified her from a seat on the Court. But Sen. Orrin Hatch (R-Utah) and others became exasperated when she declined to answer Senator Specter’s question about her position on the death penalty. They also expressed frustration when she declined to answer questions about gay rights. When Sen. Cohen pressed her for an answer, she responded, “Senator, you know that that is a burning question that at this very moment is going to be before the Court, based on an action that has been taken. I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”

Republicans did not find Ginsburg to be a controversial nominee and on Thursday, July 29, 1993, the Judiciary Committee voted unanimously in favor of her confirmation, a mere six days after the hearings concluded. The Senate then approved Ginsburg’s nomination by a vote of 96 to 3. The three dissenters were Conservative Republicans Jesse Helms (R-North Carolina), Don Nichols (R- Oklahoma), and Robert C. Smith (R-New Hampshire). Sen. Helms said he voted against her because of her position on abortion and the “homosexual agenda.”

Stephen Breyer

President Clinton was able to fill a second seat in the Supreme Court when Justice Harry Blackmun announced his retirement in April 1994. Clinton chose another nominee who would elicit little or no opposition when on May 12, 1993 he announced his selection of Chief Judge Stephen Breyer of the court of appeals in Boston. Breyer was a judicial moderate. As Leonard Gross and Norman Vieira observed, “Breyer was perceived as a candidate without an ideological agenda. Some of his opinions were sure to please liberals, while other opinions would give comfort to conservatives.” The New York Times reported that “in this new low-key era, don’t expect even the conservative Republicans on the panel to raise any serious objections.” (NYT, July 8, 1994) Breyer, formerly chief counsel for the judicial committee, had strong support in both parties. Republican senators like Sen. Hatch wanted Clinton to nominate Breyer. Prior to the hearings Senators Hatch and Strom Thurmond (R-South Carolina) both assured Breyer they would support his confirmation, an indication that Breyer was ideologically compatible to Republicans.

Although Senators Hatch and Thurmond supported Breyer; they and Sen. Alan Simpson (R-Wyoming) were concerned about Breyer’s ideological position on freedom of religion, an important conservative issue. They were disconcerted his admission that he believed in a wall of separation between church and state. They felt that his position was rigid. As a judge Breyer had ruled that a school district’s officials had the right to visit a religious grade school to evaluate the quality of its teaching; Republicans deemed this a violation of religious freedom. Breyer defended his action by claiming he was more sensitive to the issue then the Supreme Court had been in similar rulings. Breyer also claimed, according to the NYT, that “the great religious wars of three centuries ago were fought over the right of people to pass on their beliefs to their children. It was therefore not surprising, he said, that controversy over the issue increased when it involved schools.” (NYT, July 14, 1994) The senators were also concerned about his position on home schooling; Breyer responded that he approached the issued without a bias one way or the other.

Breyer’s largest hurdle came when Newsday broke a story indicating that he had investments in some of Lloyd’s of London’s insurance syndicates. Senators argued that his investments would create conflicts of interest if Breyer would be presented with “Superfund” cases that could affect Lloyd’s potential liability. In the hearings Breyer promised to sell off his investments in Lloyds, and to make all of his investments public. However, as the confirmation process was winding down Newsday further exposed Breyer as having been on a three-judge panel in a pollution case where the Kayser-Roth Corporation was sued by Lloyd’s of London after being held accountable for cleaning up the site of a chemical spill. The case demonstrated that he had failed to recognize that he had a conflict of interest. (Lloyd’s was directly involved in the case, but it was uncertain if his syndicates were.)

Despite concerns about the Lloyd’s case, the eighteen member Judiciary Committee unanimously voted to approve Breyer’s nomination. Ten days later, on July 29, 1993, after less than six hours of debate, Breyer easily won Senate confirmation by a vote of 87 to 9. The Boston Globe reported, “Conservatives and liberals alike rose to praise his abilities as a judge, with Kennedy and Republican Sen. Orrin Hatch of Utah leading the way.” (Boston Globe, July 30, 1994) The nine dissenting senators (all Republicans) included: Conrad Burns (R-Montana), Daniel R. Coates (R-Indiana), Paul Coverdell (R-Georgia), Jesse Helms, Trent Lott (R-Mississippi), Frank H. Murkowski (R-Alaska), Don Nickles (R-Oklahoma), and Robert C. Smith. They indicated they were primarily concerned with Breyer’s ethics, but also objected to his support of federal funding for abortion counseling, his lack of commitment to private property rights, and his opposition to prayer in public schools and at public schools’ graduation ceremonies.

Sen. Smith told the Union Leader that he opposed Breyer because “He will move the court away from the conservative justices’ (William Rehnquist, Antonin Scalia, Clarence Thomas) way of the court, which most people in New Hampshire essentially support on most of the issues.” Although he still voted for him, Sen. John McCain (R-Arizona) “chastised Breyer for his role in promoting a federal courthouse on Boston’s waterfront that he called ‘an exercise in extravagance and arrogance.’ ” (Boston Globe, July 30, 1994)

In the end, despite their reservations, most Republican senators approved of Breyer’s nomination because, as Sen. Richard Lugar (R-Indiana) put it, they “take the view that Breyer is the best justice – ideologically speaking – they can expect President Clinton to nominate.” (Christian Science Monitor, July 27, 1994)

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