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U.S. Supreme Court

Is It ‘Illegal’ or ‘Undocumented’ Immigrants? Sotomayor Opts for the Latter

Posted Dec 9, 2010 11:59 AM CDT
By Debra Cassens Weiss

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In oral arguments on Wednesday, the U.S. Supreme Court considered an Arizona law that revokes the licenses of businesses that knowingly hire illegal immigrants.

The legal issue was whether federal law pre-empts Arizona’s tougher penalties. But another issue, not directly addressed, is whether “illegal immigrants” or “undocumented immigrants” is the correct term.

Justice Sonia Sotomayor opted for “undocumented immigrants,” and was the only justice to do so, the Washington Post reports. She used language endorsed by the National Association of Hispanic Journalists. The organization prefers “undocumented worker” or “undocumented immigrant” to terminology that “criminalizes the person rather than the actual act of illegally entering or residing in the United States.”

The New York Times covered the arguments and concluded the law is likely to survive “if only because of judicial arithmetic.” Justice Elena Kagan is not participating in the case, raising the possibility of a 4-4 vote that would leave intact an appellate decision upholding the Arizona law. The National Law Journal noted that “a number of justices” appeared to support Arizona, but also said the possibility of a split “loomed large.”

The federal Immigration Reform and Control Act of 1986 expressly pre-empts state or local laws imposing civil or criminal sanctions, but makes an exception for “licensing and similar laws.”

The case is Chamber of Commerce v. Whiting.

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