Supreme Court Hears Challenge to Arizona Immigration Law--The One Signed by Gov. Janet Napolitano

By Penny Starr | December 9, 2010 | 5:11 AM EST

Homeland Security Secretary Janet Napolitano testifies before the Senate Homeland Security Committee. ( Starr)

(’s Republican Gov. Jan Brewer came to the U.S. Supreme Court on Wednesday to hear arguments on an Arizona immigration law signed in 2007 by then-Arizona Gov. Janet Napolitano, a Democrat.

Both governors signed laws that the Obama administration opposes. Napolitano is now part of the Obama administration, serving as Homeland Security Secretary.

The law signed by Napolitano in 2007 (HB 2745) sanctions employers who knowingly hire illegal aliens, and it also requires employers doing business with the state of Arizona to use the federal government’s E-Verify database to confirm the legal status of workers.

Napolitano called the bill “flawed” but signed it anyway on July 2, 2007 because – as she said at the time – “It is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs.” In the same 2007 statement, Napolitano said the flow of illegal immigrants into Arizona was “due to the constant demand of some employers for cheap, undocumented labor.”

Gov. Brewer told on Wednesday that the “moccasin” is on the other foot now that Napolitano is President Obama’s Homeland Security Secretary: “When she was governor, she made it very clear that she signed the bill because the federal government was not doing their job, and that’s exactly what the problem and issue is,” Brewer said. “I guess it all…depends on where your moccasins are setting (as) to what your reasoning is.”

Brewer said she’s confident that the Supreme Court will rule in Arizona’s favor, and she said a ruling upholding the 2007 law could be a harbinger for the future of SB 1070, the immigration bill that Brewer signed and which the U.S. Justice Department has challenged.

“I believe the (2007) employer-sanction bill will set a trend or position for states rights, and so I think that if we do win this case, then we will be further ahead with Senate Bill 1070,” Brewer said. “I believe we’re moving in the right direction for Arizona, and I believe we’re moving in the right direction for America.”

SB 1070 allows law enforcement officials who are investigating criminal activities to verify an individual’s legal status if they have probable cause to suspect that individual may be in the United States illegally.

The Justice Department’s case against SB 1070 claims that the Arizona law preempts the federal government’s right to enforce federal immigration law – and the same argument is being used to challenge the 2007 law signed by Napolitano.

The 2007 Legal Arizona Workers Act calls for employers who knowingly or intentionally employ illegal aliens to be fined for the first violation and to have their license suspended or revoked for a second violation.

The U.S. Chamber of Commerce and labor and civil rights groups, including the American Civil Liberties Union, filed suit against Arizona, arguing that the law would be a “death sentence” for businesses. 

In arguments before the Supreme Court Wednesday, the plaintiffs not only said the Arizona law preempts the federal government’s right to enforce immigration law, they also argued that the law is not consistent with the federal government’s stance that state participation in the E-Verify program is voluntary. (The federal government does require some employers to use E-Verify, including those who seek federal contracts.)

The Obama administration has assigned one of its top litigators to help the plaintiffs’ attorney argue the case.

In defending the 2007 law, Mary R. O’Grady, solicitor general for the state of Arizona, argued on Wednesday that the 1986 Immigration Reform and Control Act – which made it a federal offense to hire and employ illegal aliens -- reserved the right for states to deal with businesses that operate within that state, including the revocation of business licenses.

O’Grady argued that the E-Verify portion of the law reflects the federal government’s policy of helping states enforce federal immigration law.

A number of conservative groups are backing Arizona’s right to enforce laws that control illegal immigration, including the Eagle Forum Education and Legal Defense Fund and the American Center for Law and Justice (ACLJ).

“The issues at the center of this argument are crucial:  whether states can take legislative action to protect their borders and citizens – without being trumped by the federal government,” the ACLJ said of the amicus brief it filed in the case. “The Arizona law complements federal law, and we’re hopeful that the high court will permit Arizona to take the legislative action it desires and its citizens deserve.

“In our amicus brief, we contend the Arizona law is a valid exercise of Arizona’s police powers,” that ACLJ said in its statement on the case. “State laws, like the Legal Arizona Workers Act, that mirror federal immigration provisions and incorporate federal standards promote national policy and should not be preempted.”

The ACLJ, contending that illegal immigration is a serious problem, also argued that the federal government “has proved inadequate to the tasks of enforcing current immigration laws and building consensus toward needed immigration reform.” The federal government has left the states to “cope on their own,” the ACLJ says.

A decision on the Napolitano-signed 2007 law is expected in June.