WASHINGTON - U.S. Supreme Court justices appeared to be skeptical about the worker penalties included in Arizona's anti-immigrant, anti-Hispanic law, SB1070, even as their questions suggested other parts of the statute might be upheld.
In long oral argument on April 25, several justices seemed to agree with Arizona that it was trying to carry out federal law, which bars undocumented workers from entering the U.S., and, by inference, individual states.
But where Arizona and federal laws differ is that Arizona has higher penalties against only the workers and presumes they're undocumented, forcing them to prove their legality. Indeed, SB1070 bars them from seeking work at all.
The justices heard the arguments on SB1070's constitutionality as unionists and their allies massed outside the Supreme Court to emphasize that everyone should be treated equally under the law, regardless of his or her race, color or immigration status. Not doing so amounts to racial profiling targeted at Hispanics, the unionists said. (See separate story.)
The same radical right-GOP cabal that has pushed anti-worker laws through state legislatures nationwide, and that is pushing anti-worker laws through the GOP-run U.S. House, also pushes the anti-immigrant laws targeting undocumented workers.
Besides Arizona's, such laws have been approved in South Carolina, Utah, Georgia and Alabama, and the Obama administration has challenged all of them in court on constitutional grounds. Unions have sided with the administration. But the justices were skeptical of the constitutional argument for federal primacy in the field.
Several justices weren't skeptical when they felt Arizona stepped over the legal line in penalizing the workers, including mass detention and deportation.
Arizona "does seem to expand beyond the federal government's determination about the types of sanctions that should govern the employment relationship," Chief Justice John Roberts told Paul Clement, Arizona's lawyer and a top former Justice Department official for the anti-worker GOP Bush government.
"The federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. And Arizona, in this case, is imposing some significantly greater sanctions," the chief justice added.
"Well, it's certainly imposing different sanctions," Clement replied. "I mean, you know, it's kind of hard to weigh the difference between removability, which is obviously a pretty significant sanction for an alien, and the relatively modest penalties imposed by" the Arizona law.
"But I take the premise that (Arizona's law) does something that there is no direct analog in federal law. That's not enough to get you to preemption, obviously," where federal immigration law would override SB1070, Clement claimed.
Donald Verrilli, who as Solicitor General is the government's top lawyer, told the justices that SB1070 is unconstitutional - including in its tougher penalties directed at undocumented workers - because immigration is a field where the federal government pre-empted the states, to set up one uniform law for the country.
"Arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the federal government agrees to direct its enforcement resources to remove the people that Arizona has identified," Verrilli said. The feds may have other priorities for removing people from the U.S., he pointed out.
"It's worth examining specific judgments Congress made" in its 1986 comprehen-sive immigration law, Verrilli told Justice Antonin Scalia, who minutes before had suggested rounding up undocumented workers and deporting them back to their native lands.
"On the employer's side -- and, after all, this is a situation in which the employer is being the exploiter and the alien being the exploited -- Congress said states may not impose criminal sanctions," he noted. "Even the federal government will not impose criminal sanctions for the hiring of employees unless there's a pattern or practice.
"It seems quite incongruous to think that Congress, having made that judgment and imposed those restrictions on the employer's side, would have left states free to impose criminal liability on employees merely for seeking work, for doing what you and I would expect most otherwise law-abiding people to do, which is to find a job so they can feed their families.
"So I think that's a significant problem," Verrilli concluded.
The justices will rule on SB1070's legality by the end of June.