MPI policy brief argues that Arizona Supreme Court decision will have little impact on other immigration cases

The recent Supreme Court decision upholding the 2007 Legal Arizona Workers Act, which penalizes employers that knowingly hire undocumented workers by revoking their business licenses, is the subject of a policy brief released by the Migration Policy Institute today.

The brief argues that the 2007 Arizona case, Chamber of Commerce v. Whiting, is good news for states that have passed very similar laws, but will not have much effect on other immigration-related cases currently making their way to the Supreme Court.

That’s because the Whiting decision was based on very specific arguments based on the text of the two major federal laws governing immigration enforcement, the 1986 Immigration Reform and Control Act and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The former prohibits state governments from penalizing businesses that hire undocumented workers — but makes an exception for the use of “licensing laws.” In the Whiting case, the majority opinion was that Arizona’s case falls under that exception.

More recent “attrition through enforcement” laws enacted by the states, including Arizona’s SB 1070 and Georgia’s HB 87, have little connection to the dispute over business licenses. These laws are accused of being unconstitutional in the cases brought against them primarily because they empower local police to check the immigration status of people suspected of being undocumented. To a lesser extent, they are criticized for the criminalization of transporting or harboring undocumented immigrants under certain conditions.

The brief also suggests that Whiting may motivate Arizona and other states that have tied business licenses to the legal status of employees to step up enforcement of the new laws. However, Arizona in particular remains a test case that other states are watching closely: “A departure of businesses from the state or dramatic increases in costs could lead other states to rethink efforts to enact similar laws,” the brief posits. To say nothing of the effects on the immigrant and Hispanic populations in states which have passed these laws, effects that have already been observed in the labor shortages faced by Georgia’s farmers.