ABA Journal

Alien Resurrection: Justices Open the Door for States to Control Immigration Status

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In one respect, the U.S. Supreme Court issued an opinion so narrow it squeaked when it upheld an Arizona state law that can harshly punish employers who hire illegal immigrants. Indeed, Arizona business leaders say they expect little change in their state as a result of the May 26 decision in Chamber of Commerce v. Whiting.

But in another respect, the decision hinged on a single concept—the idea of license, which opened a gateway for other state and local governments to plunge into immigration regulation. The federal government nearly exclusively ruled immigration affairs for more than a century. (See “Raising Arizona,” ABA Journal, December 2010.)

State officials also greeted the decision as a signal the high court may be willing to consider a more contentious Arizona immigration law that allows police to stop and question people they suspect of entering the state illegally.

But the court dropped no hints as to the fate of the second law, which was challenged in United States v. Arizona. Opponents say the law allows racial profiling of Mexican-Americans in the border state. Experts doubt the justices will accept it because it rests on shakier constitutional ground. “I think they were very careful not to send any cue beyond Whiting,” says Temple University law professor Peter J. Spiro.

Nevertheless, lawyers and experts on both sides agree the court spoke clearly just by deciding Whiting in the first place. “The argument that this is exclusively a federal power is off the table,” Spiro says.

Click here to read the rest of “Alien Resurrection” from the August issue of the ABA Journal.

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