Arizona State Sen. Russell Pearce. (Photo: www.JoseMunozPhotos.com)

PHOENIX, AZ—2011 will be recorded as a turning point in the battle between conservative politicians in Arizona who supported laws like  SB 1070 – a law that made it a state crime for a person to be an undocumented immigrant in Arizona – and the pro-immigrant rights groups that stood in opposition.

For close to a decade, Arizona has been the nation’s primary battleground over immigration. The state has passed some of the nation’s most stringent anti-immigrant laws, including SB 1070. That law faced numerous court challenges, and its fate will be decided by the U.S. Supreme Court, probably in June.

While states including Alabama set into motion even harsher laws targeting the undocumented, creating a climate of fear and panic in immigrant communities, in Arizona, politicians who pushed those policies suffered a brutal backlash.

The Campaign Against State Senator Russell Pearce

The year began with a grassroots, bi-partisan group of citizens and business leaders developing a plan to recall SB 1070’s architect, State Senator Russell Pearce. The movement grew without much media attention initially, but steadily gained momentum.

Buoyed by his success with SB 1070, Pearce decided in 2011 to spearhead an effort to deny birthright citizenship to the children of undocumented immigrants born in the U.S. by passing a state law that would force a legal challenge to the 14th amendment of the U.S. Constitution.

Pearce also wanted to pass four other anti-immigrant bills. The legislation would have required schools to check on the immigration status of students, and hospitals to ask about the immigration status of people they provide services to.

But Pearce’s tough immigration bills failed to pass, even though his hardline immigration reputation led to his election as president of the Arizona Senate. Opposition from business leaders and immigrant advocates, and the votes of 12 Republican senators meant Pearce didn’t have enough support to pass his bills.

Many of Republican senators who had voted for SB 1070 said “enough is enough” when it came to immigration after receiving a letter from 60 CEOs that urged Pearce to stop the bills.

“Arizona’s lawmakers and citizens are right to be concerned about illegal immigration. But we must acknowledge that when Arizona goes it alone on this issue, unintended consequences inevitably occur,” the letter read. “Last year, boycotts were called against our state’s business community, adversely impacting our already-struggling economy and costing us jobs. Arizona-based businesses saw contracts canceled or were turned away from bidding. Sales outside of the state declined.”

Pearce’s Collapse

In a clever campaign that appealed to a broad swath of voters, the anti-Pearce forces, calling themselves Citizens for a Better Arizona (CBA), focused not on Senator Pearce’s role on immigration issues but rather his style of leadership, which they defined as “extreme.” They underscored his involvement in cutting state funding of education and health.

At first, Pearce didn’t seem to take the threat of a recall seriously. But as the months went by and CBA filed over 10,000 valid signatures needed to force a special recall election, he started to get nervous.

In a desperate attempt to divide the Latino vote against Pearce, members of the Tea Party supported a Latina Republican candidate in the  Senate election, Olivia Cortes, but she was ultimately forced out of the race by the threat of lawsuits alleging she was a sham candidate.

In the end, Pearce lost to political newcomer Jerry Lewis, who got 53 percent of the vote in one of the most conservative districts in the state. Like Pearce Lewis is a Republican and a Mormon.  It was a stunning reversal, considering that Pearce had represented his district for over a decade.

CBA’s victory represented the birth of a new form of organizing in Arizona that is bi-partisan and includes a broad group of people at the grassroots level.

The Attack on “America’s Toughest Sherrif”

The pro-immigrant allies were invigorated. Before the applause subsided over Pearce’s defeat, there were renewed calls for Maricopa County Sheriff’s Joe Arpaio’s resignation, and CBA announced a campaign to remove him from office.

With a federal Department of Justice lawsuit looming over Arpaio’s agency (MCSO) for racial profiling against Latinos,  one of the most influential proponents of SB 1070 was under attack.  On the heels of criticism from the DOJ, Arpaio’s jailers lost some of their immigration law enforcement powers this fall, which had allowed them to inquire about the immigration status of people entering county jails and match their fingerprints to those in a federal database.

The revocation of MCSO’s powers to enforce the federal 287g and Secure Communities programs was frosting on the cake for many opponents of the sheriff and the state’s anti-immigrant policies.

Their cries for his removal grew louder just a few weeks ago when the AP reported that Arpaio’s agency failed to properly investigate hundreds of sex crimes. Many of the victims had Latino surnames.

The final blow for Arpaio this year was the report from a three-year DOJ probe which described his agency’s abuses towards Latinos as the most “egregious” in the nation.

Former County Attorney General, Andrew Thomas Also on Shaky Ground   

Arpaio and Pearce are not the only politicians who felt the heat this year. Former County Attorney General, Andrew Thomas, known for his unique interpretation of state immigration laws, faces the possibility of loosing his attorney’s license due to an investigation by the Arizona State Bar.

Thomas assumed office after a campaign in which he promised to end illegal immigration. He immediately teamed up with Sheriff Arpaio to use a set of state laws against undocumented immigrants that would result in prosecutions and felonies to keep people from migrating legally to the U.S. in the future. He also used a state law created to fight human smuggling to prosecute immigrants who pay for the services of border-crossing coyotes.  A state civil-employer sanctions law was used by Thomas to bring charges of ID theft against undocumented workers who use false papers to obtain employment.

Now, Thomas, who is one of Arpaio’s strongest allies, is under scrutiny for possible ethics violations that involve using his powers to retaliate against political enemies by initiating investigations without probable cause. The sheriff is also implicated in this issue and is under investigation by a federal grand jury.

Looking forward to 2012

With the architect of SB 1070 out of office and two major anti-immigration crusaders on shaky ground, the politics of immigrations appear to be shifting in Arizona.

CBA now has Arpaio in its crosshairs. Members of the PUENTE movement, a human rights group, are planning to keep protesting against Sheriff Arpaio and raise the bar by turning the heat on those who support him.  Others are planning to focus on Latino voter registration to keep up the momentum after Pearce’s recall.

Yet it’s unclear how much traction pro-immigrant forces will have in 2012, a presidential election year.  Some observers say it’s unlikely that the Obama administration will take action on the criminal investigation of Arpaio.

GOP presidential candidate Rick Perry has dismissed the DOJ’s investigation into Arpaio’s office as politically motivated. And Republican candidates continue to chastise the Obama administration for being weak on illegal immigration.

Probably the most important variable in the immigration debate next year will be the U.S. Supreme Court decision on the legality of SB 1070. Arizonans on all sides are anxiously awaiting the court’s ruling. They want an authoritative answer to the question of how individual states and the nation at large should handle the presence of millions of undocumented immigrants.

Feet in Two Worlds is supported by the New York Community Trust and the John S. and James L. Knight Foundation with additional support from the Mertz Gilmore Foundation and the Sirus Fund.  

State Sen. Russell Pearce at a rally last year. (Photo: Valeria Fernández)

Pearce, now the former president of the Arizona Senate, lost in the most conservative district in the state where the majority of the voters are Republican and Mormon like him.

His removal from the state legislature could alter the balance of power in a body that has passed dozens of bills to fight illegal immigration throughout the years.

Republican Rep. John Kavanagh expects that politicians that were “uncomfortable” with illegal immigration related bills last year, including one to deny birthright citizenship to the children of undocumented immigrants, will be more careful.

“I think they’ll certainly be more cautious in what they support,” he said. “No one is going to come in as a result of Senator Pearce losing and try to undo any of his legislation. But additional legislation may be halted or slowed.”

Others have vowed to continue with Pearce’s legacy. Republican Senator Steve Pierce was elected on Thursday to the Senate President post and promised to follow in Pearce’s footsteps.

Pearce rose slowly through the ranks of the Arizona Legislature, first as a representative, then as the head of the appropriations committee and finally as Senate president. Fighting illegal immigration was always his main focus. Rep. Kavanagh argued that, thanks to Pearce, Arizona already has among the strictest anti-immigrant legislation in the country, and his leadership inspired similar legislation in places like Alabama, Georgia and South Carolina.

For the rest of the article go to It’s A Free Country.

(Photo: Garrett Ziegler/flickr)

A number of states have recently enacted tough news laws aimed at cracking down on undocumented immigrants. Many of these measures were inspired by Arizona’s SB 1070, a law that makes it a state crime to be in Arizona without proper documents. The courts have yet to make a final ruling on SB 1070, which was signed into law in April 2010. But Arizona continues to be at the center of the immigration debate.

In this podcast we take you back to the pre-SB 1070 era. While the lines separating Arizona’s pro and anti immigrant advocates seemed to be hardening, reporter Valeria Fernandez, who is based in Phoenix, decided to look for common ground on immigration. She found it in the state’s large dairy industry. Here’s a story she produced in September 2009 for our radio partner, Latino USA.

Listen to the podcast:

Tens of Thousands March in Phoenix Against SB 1070. (Photo: José Muñoz)

The National Council of La Raza (NCLR), America’s largest Latino civil rights and advocacy group, has called off the boycott it initiated against Arizona in May 2010, much to the disappointment of immigrant advocates in the state. NCLR and other immigrant advocates had initially called for the action in protest of the harsh and discriminatory immigration law Arizona enacted last year.

The boycott is estimated to have cost the state hundreds of millions in lost revenue from cancelled conventions and tourism. SB 1070 earned Arizona a reputation for being hostile to immigrants and Latinos in general.

La Raza rationalized its cancellation of the boycott, claiming that it achieved its goal—that other states were discouraged from enacting similar immigration laws.

ImmigrationWorks USA points out however, that this year, “three states – Alabama, Georgia and South Carolina – followed Arizona almost to the letter in authorizing local law enforcement to inquire about the immigration status of anyone they stop in the course of other, routine police work.”

A look at the numbers reported by the National Conference of State Legislatures also challenges NCLR’s assertion that the Arizona boycott stemmed the tide of anti-immigrant legislation. In the first half of this year alone, state lawmakers introduced 1,592 bills and resolutions relating to immigrants, a 16 percent increase from the same period last year. 151 laws have been enacted and 95 resolutions adopted, mostly around enforcement and employment issues which tend to disadvantage immigrants and their families.

La Raza did give a more plausible reason for ending the boycott. In a letter to the Real Arizona Coalition of businesses, interfaith groups and community organizations, NCLR admitted that it was aware “of the hardship it has imposed on many of the workers, businesses and organizations whose interests we seek to advance” and as such decided to “suspend the boycott and cease all efforts to discourage conventions or meetings in Arizona, or to discourage our partners from participating in such meetings.”

The Arizona boycott may have failed to stop Alabama, Georgia and South Carolina from pursuing their own versions of Arizona’s law but it did raise the consciousness of sympathetic people nationwide. And it may yet succeed in other states, especially when business interests get involved. Arizona’s lost revenue and damaged reputation “frightened business leaders in many states,” argues ImmigrationWorks USA, which is working with 25 state-based business coalitions to overhaul the U.S. immigration system.

In terms of reforming the national immigration system, the boycott strategy is limited. It’s the narrative on immigration that needs to change.

As immigration policy expert Marc R. Rosenblum writes, “part of the issue is that the dominant frame for the immigration debate since the 1970s has been around criminality and security threats associated with unauthorized immigrants, a frame which naturally focuses attention on law enforcement solutions.”

Immigrant advocates must change the story. They need to show, along with the economic benefits of integrating immigrants, that unauthorized immigrants are not criminals but hard-working women and men who came to better the lives of their families, much like many immigrants before them. Advocates need to convince Americans that immigrants are not asking for special treatment or hand-outs, only the opportunity to prove themselves, give back, and earn a place in society.

When more rational and fair-minded Americans hear and embrace a different narrative, then perhaps there will be progress.

You can follow Erwin de Leon on Twitter or read his blog.

Young immigrant activists in New York before last year's DREAM Act vote in the U.S. Senate. (Photo: Catalina Jaramillo)

Listen to the Feet in Two Worlds podcast.

A bill in the New York legislature would give young, undocumented immigrants the right to work and drive a car in the state. In Arizona, meanwhile, efforts are underway to make it more difficult for undocumented students to attend state colleges and universities.

In both NY and AZ, as well as other states that have passed or are considering similar legislation, the undocumented young people who would be most directly affected have taken a central role in the debate.  They are revealing their immigration status on Facebook and at public events and using social media as a political organizing tool.  In the process they are transforming the immigration reform movement across the country.

These activists – known as “dreamers” – take their name from the DREAM Act, a measure that narrowly failed in the U.S. Senate last year (and reintroduced last month), that would provide a path to legal status for young people who were brought to the U.S. illegally by their parents at an early age.

In this podcast Feet in Two Worlds executive producer John Rudolph speaks with two journalists who have been covering the dreamers and their use of social media and other organizing tactics.  Aswini Anburajan is a free lance journalist in New York.  Valeria Fernandez reports from Phoenix on immigration issues.

Subscribe to the Fi2W podcast using iTunes or Podbean ¦ Download this episode

Fi2W is supported by the New York Community Trust and the John S. and James L. Knight Foundation with additional support from the Mertz Gilmore Foundation.

Coverage of media policy is supported by The Media Consortium.

A 2010 protest against immigration raids. (Photo: SEIU/flickr)

PHOENIX, Arizona—Supporters of tougher immigration enforcement say last Thursday’s ruling by the U.S. Supreme Court upholding Arizona’s Employer Sanctions Law gives a “green light” to states to supplement federal enforcement of immigration laws.  Opponents argued the decision concerning the law that penalizes companies for knowingly hiring undocumented workers was narrow and won’t set a legal precedent.

Then-governor Janet Napolitano—now the Secretary of Homeland Security—signed the Legal Arizona Workers Act (LAWA) into law in 2007. It requires businesses to use e-verify, a federal database to run checks on prospective employees to determine if they are legally authorized to work. Several federal courts upheld the law, despite a challenge from the business community in Arizona.

“This is a huge victory for America and the American worker. It is a defeat for the open-borders, profits-over-patriotism crowd. It is a death penalty for employers who continue to hire illegals and displace American workers, “said Senator Russell Pearce, a Republican and main sponsor of the bill.

Republican Representative, John Kavanagh said this is also good news for the future of  SB 1070. “I think this ruling is a clear green light to states to proceed in the current course of helping the federal government,” he said.

SB 1070, signed into law in March of last year by Governor Jan Brewer, makes it a crime to be in the state without documents. The law, which has inspired similar bills in other states, has been partially blocked in the federal courts, and is widely expected to be headed for review by the U.S. Supreme Court.

Civil Rights attorney Daniel Ortega, said the high court’s LAWA ruling on a 5-3 vote speaks only in a limited way to what states can do to regulate the businesses licenses of companies that hire undocumented labor. Ortega argues the Supreme Court ruled in a very narrow way to say that the Arizona state law wasn’t in conflict with the priorities of the federal government.

He said if anything, the ruling strengthens the argument against SB 1070, that it is an example of the state overstepping into an area under federal jurisdiction.

Governor Brewer, in a statement, came to a very different conclusion.

“In light of today’s decision, I am more adamant than ever that states do have a complimentary role in enforcing federal immigration laws, despite the Obama Administration’s opposition at every turn.”

Since LAWA took effect in 2008, only a handful of businesses have been sanctioned for violating the law.  The impact has been mostly felt by undocumented workers who have been detained in worksite raids by Maricopa County sheriff’s deputies under the direction of  Sheriff Joe Arpaio.  Over 300 workers have been arrested during the past three years.

Todd Landfried a spokesperson for Arizona Employers for Immigration Reform (AZEIR) , a group representing over 200 businesses that were plaintiffs in the lawsuit challenging the law, said the ruling doesn’t change the status quo for businesses:

“Quiet frankly the ruling wasn’t unexpected, we already been living under this, so there’s no significant change that the business community expects.  This points out that even bad laws can be constitutional”

Lydia Guzmán, the president of Respect/Respecto a local organization that monitors violation of civil and human rights in the state said there have been numerous problems with the law that have gone beyond the separation of immigrant families.

“Since January 2008, we’ve received several phone calls from people in the community that were denied an opportunity to work, people that are U.S. citizens or legal residents,” said Guzmán.

She attributes this problem to glitches in the e-verify database in instances when people change their name or get married, and argues that once the problem occurs there’s a lengthy process to correct errors.

Recently, a federal judge ruled against Arpaio’s office for wrongfully arresting a citizen and his U.S. resident father in a raid targeting undocumented workers.

Viridiana Hernández "came out" as undocumented after SB 1070. (Photo: Valeria Fernandez)

Fi2W’s Valeria Fernandez produced a radio story for Latino USA about SB 1070 one year after the law was signed. Listen:

[Visit post to listen to audio]

Reporter’s Notebook

PHOENIX, AZ–When Gov. Jan Brewer signed SB 1070 into law last April 23, Arizona was hit by a tsunami of international media attention.

My phone was ringing of the hook from radio stations in Colombia, Spain, France, Argentina and even Uruguay—my home country—wanting to know what this law was all about.

In a nutshell, I would tell them that SB 1070 made it a state crime to be in Arizona without documents–and it was punishable with jail.

But SB 1070 is more complex than that. Even as a federal court injunction stopped five of its main provisions just before the law was to take effect—including the one I mentioned—other aspects of the law remain on the books.

Among them is one that keeps cities and localities from creating laws to ban police officers from asking someone about their immigration status.

But rather than looking at what law-enforcement has done with the few portions of SB 1070 that did go into effect on July 29 2010, for my Latino USA radio piece, I wanted to look at the impact of SB 1070 on the lives of those targeted by the law.

What’s changed for them in the past year?

When you talk to immigrants in the street, they’ll tell you that not much has changed. Some continue to live in fear that they could be stopped by the police and deported. Others are having a difficult time getting work due to another Arizona law that harshly sanctions employers who hire undocumented immigrants.

But when I met Viridiana Hernández I heard a different story. Viridiana, or “Viri” as her friends like to call her, is an undocumented immigrant and she wants it to be known.

She wants her story to be told and she shares it with everyone she encounters.  I followed her for a few weeks going to meetings with the Latino Union Club she founded in her college and to private homes in which she tries to engage Latino voters on the importance of participating in the political process.

She drives all over town without a driver’s license. From the college where she takes classes to become a teacher—she wants to teach immigrant families English—to community meetings were she is an organizer leading 60 immigrant families.

And she knows that every day she takes the chance of being pulled over by the police and asked for documents she can’t produce. She’s not less afraid than others, but she thinks it is worth it.

For Viridiana it wasn’t always like this. She used to keep a low profile. When SB 1070 was signed into law she broke into tears.

“They wanted to criminalize me,” she said. “I couldn’t believe it when I read the law.”

Her family discussed leaving the state.

But she says they quickly realized that if other states followed suit, pretty soon they were going to run into the same problem.

“We didn’t want to be running all our lives,” she told me in perfect English. “This is my home, my family has fought hard for everything we have.”

Viridiana is constantly busy. I don’t think she spends much time going to parties like other kids her age. She’s driven and focused on making small gains.

She says it is overwhelming to hope to change the politics in Arizona overnight, to change the climate that led to passage of more than 20 anti-illegal immigration bills in the last decade.

She believes change needs to start with manageable things, like mobilizing voters in a Phoenix district that is mostly Latino, but where Latinos rarely turn out to vote.

For her, this past year has been a long journey of changes, and the biggest one started with herself. Perhaps her biggest win: She’s no longer afraid.

Shawna Forde (left) was convicted in the murder of 9-year-old Bricenia Flores (right) and her father Raúl Flores. (Via New America Media)

This story was originally published by New America Media.

PHOENIX, Ariz.—Shawna Forde, the founder of a vigilante border group, could face the death penalty after she was found guilty on Monday of killing 9-year-old Bricenia Flores and her father Raúl Flores in 2009.  The jury began deliberations on Tuesday on whether or not to impose capital punishment.

Forde, the 43-year-old leader of Minutemen American Defense (MAD), a splinter faction of the Minutemen – a citizen group that patrols the U.S.-Mexico border looking for undocumented people – had pleaded not guilty to the charges of first-degree murder, attempted first-degree murder and home-invasion.

Prosecutors in Pima County accused Forde of being the intellectual author behind the crime, which entailed breaking into the Flores home to steal money. Forde claims to have believed that Raul Flores was involved with drug dealing, and she had planned to use the stolen money to fund her border vigilante group.

Gina Gonzalez, the mother of 9-year-old victim Bricenia Flores and the only witness in the case, took the stand and gave a heartbreaking account of the massacre that unfolded on May 30, 2009, inside her home in Arivaca, Arizona, just 13 miles from the Mexican border.

Gonzalez said she listened as her 9-year-old daughter Bricenia pleaded for her life, only to then hear the shooter reload his gun and kill the little girl.

The Forde decision comes in the aftermath of a deadly public shooting in Tucson that shook the nation last month and left 6 dead, including another 9-year-old, and 13 more injured, among them Arizona Congresswoman Gabrielle Giffords.

The jury’s decision was an unexpected turn of events for human rights activists who believe Latinos are facing a hostile environment in Arizona, a state they say has been welcoming to extremists and border vigilante groups.

“This is the start of a positive path for our state,” said Isabel Garcia, director of Derechos Humanos, a human rights coalition in Tucson, Arizona.

While she was somewhat surprised by the verdict, Garcia hopes that the highly publicized shooting in Tucson last January, coupled with comments made by president Barak Obama during a memorial to the victims, and Pima County Sheriff Clarence Dupnik’s denunciation of what he called a “vitriolic political rhetoric” in the state, may have made an impression in the minds of Arizonans.

>> Read the whole story at New America Media

Sheriff Joe Arpaio. (Photo: Dan De Vivo)

Three years ago, when journalist Valeria Fernandez and filmmaker Dan De Vivo started work on a documentary film about immigration in Arizona, the state’s reputation for having some of the nation’s harshest anti-immigrant policies was still in the making.  The landmark immigration law known as SB 1070—enacted this year, and now the object of several court challenges—was still a proposal struggling to win support in the state legislature.

With much less fanfare, then-Governor Janet Napolitano, a Democrat, had signed the state’s employer sanctions law, which penalizes businesses that hire undocumented workers. Armed with that law, Maricopa County Sheriff Joe Arpaio started conducting immigration raids around Phoenix. Under what Arpaio’s critics called a twisted legal interpretation, sheriff’s deputies began rounding up undocumented immigrants and arresting them for working in the U.S. illegally, thereby punishing the workers but not the companies that hired them.

Fernandez and De Vivo’s film, called Two Americans, shines a light on Sheriff Arpaio, juxtaposing his crusade to arrest and deport large numbers of undocumented immigrants with the story of another iconic figure in Arizona’s immigration debate:  Katherine Figueroa. Figueroa was nine years old in 2009 when her parents, both undocumented Mexican immigrants, were arrested by Maricopa Country sheriff’s deputies in a raid at the Phoenix car wash where they worked.

Watch the film trailer for Two Americans:

Kathy, who is a U.S. citizen, watched the arrests take place on live TV (the sheriff has often publicized his immigration enforcement activities by tipping off the media ahead of time).  Over the following year Kathy went on to become what Fernandez calls, “the poster child for the pro-immigrant movement,” appearing on TV herself, and traveling to Washington, DC to testify in front of a congressional committee looking into immigration policy.

You would think that focusing on these two diametrically-opposed figures would only add to the polarization around immigration.  But Fernandez, an immigrant journalist from Uruguay and a frequent contributor to Feet in Two Worlds, is optimistic it will have the opposite effect. “Our hope is that the film will bring reflection,” she said, adding, “the audience will come away with more questions than answers.”

Kathy Figueroa testifying in front of a congressional committee. (Photo: Dan De Vivo)

It will be a delicate task to portray Sheriff Arpaio and Kathy Figueroa without resorting to stereotypes or the stock language of the immigration debate.  But both Fernandez and De Vivo say they are committed to showing both of their subjects as ordinary people. And they are surprisingly sympathetic to Arpaio, even though the film, which is scheduled to be released in Spring 2011, takes a pro-immigrant perspective.

“Everybody in the film is doing what they are doing to survive,” DeVivo said.  He and Fernandez are still working on the final cut of the film, and raising funds to support the project.

“The sheriff is always accused of being such a horrible person,” added Fernandez. “And you would think that the people who dislike him most are immigrants.”  But she says she’s found sympathy for Arpaio among many undocumented immigrants, even though the sheriff has openly humiliated them, for example by parading handcuffed detainees in old-fashioned stripped prison uniforms along a street in Phoenix.

Arpaio is currently being investigated by the U.S. Justice Department for alleged civil rights violations including discriminating against people with limited English skills in county jails.  Yet, immigrants have told Fernandez that they feel sorry for the Sheriff.  “They said, [if he’s arrested] we hope Joe Arpaio won’t have to suffer as much as we did.”

U.S. Supreme Court. (Photo: dbking/flickr)

Michael Bloomberg and Rupert Murdoch are not the only businessmen lobbying for Congress to pass an immigration reform law.

A landmark case has led to an unusual alliance between businesses, chambers of commerce, civil rights groups and labor, who are all fighting the state of Arizona on a 2007 law that penalizes businesses for hiring undocumented immigrants.

On December 8 the U.S. Supreme Court heard arguments for and against the Legal Arizona Workers Act (LAWA), also known as the Employer Sanctions Immigration Law. The court will determine the constitutionality of allowing the state to 1) impose criminal sanctions against employers by revoking their business licenses, and 2) require employers to participate in the E-Verify program of the Department of Homeland Security.

E-Verify is an Internet-based system that allows an employer to determine the eligibility of an employee to work in the United States. It’s mandatory for employers with federal contracts, but voluntary for other employers. Can a state law force businesses into the program?

The plaintiffs – 11 business groups and labor organizations – say no, and are calling the law unconstitutional.  They argue the authority to approve and revoke licenses from businesses that employ undocumented immigrants is vested in the federal government. Because of LAWA, they also say some businesses have resisted hiring people of color, for fear of getting on the bad side of the law.

“Immigration policy has traditionally been the subject of federal law,” wrote lawyers David Selden and Julie Pace, who are representing the plaintiffs, in a legal paper.

The lawyers argued that any state law on immigration could “interfere and conflict” with federal immigration policy. That’s the same argument lawyers are using to fight Arizona’s more famous state immigration law, SB 1070. Selden and Pace also cited the Immigration Reform and Control Act of 1986, which expressly provides that federal regulation of immigration-related hiring practices preempts any state and local laws.

The justices make their decision in this case is expected to influence the politics swirling around immigration reform.

“If the Supreme Court recognizes federal preemption, Congress will be the only body that can fix the current immigration system and pressure will mount for action. If the Court allows the states to take action, pressure on Congress may lessen in the near term, as state immigration laws become, by default, the new national immigration policy,” the lawyers argued.

As for E-verify, Selden writes that Congress expressly stated the program is voluntary. “Even Homeland Security, which runs E-Verify, does not have the authority to make it mandatory,” he said.

But Arizona’s attorney general argues that the state has been implementing the law “fairly” since it went into effect in 2008, and just wants to ensure that no business knowingly or intentionally hires unauthorized immigrants.

Three cases have been filed for violation of LAWA. Two of the cases were resolved after the businesses (Waterworld, a limited partnership in Glendale, and a”Danny’s Subway” in Phoenix) agreed to terminate the services of undocumented employees. A third case is still under litigation.

Potentially complicating a decision in the plaintiffs’ favor is the current composition of the Supreme Court. Newly appointed Justice Elena Kagan asked to be removed from the case because she had argued a similar case as solicitor general while working for the federal government. The Obama Administration opposes the Arizona law, and filed a brief to the Supreme Court concerning this case, saying it undermines federal enforcement of immigration law.

The headcount for the conservatives is likely to include Antonin Scalia,  Clarence Thomas, Samuel Alito and Chief Justice John Roberts, who the plaintiffs fear view LAWA as a licensing law, not an immigration law.

“Anything is possible,” said Selden, “but the court will try to avoid a 4-4 decision.”

Tie votes are rare in the Supreme Court, but with these eight justices, there’s a good possibility of a deadlock. In the event of a split vote, the decision by the lower court will be upheld. In this case, the Ninth Circuit Court of Appeals upheld Arizona’s right to pass its own employer sanctions law, so the law would stand in Arizona. But no precedent will be established for states who may want to pass a similar law in the future.

In a conference call open to the media, Selden said that by revoking business licenses on the grounds of hiring paperless immigrants, the state was overreaching into a clearly defined area of federal jurisdiction.

“The state cannot come in and levy a fine against an employer, but it can take action and put companies out of business completely? It’s like saying we won’t put you in jail for 30 days but we can do it for life.”