The Road to Candelaria

State lawmakers looking for guidance on how to draft immigration legislation that can withstand federal legal challenges may not have to wait for resolution of the Department of Justice’s lawsuit against Arizona.

In testimony last week before the House State Affairs Committee, Deputy First Assistant Attorney General David Morales said a case pending before the U.S. Supreme Court — U.S. Chamber of Commerce v. Candelaria — could provide guidance to state governments looking to crack down on immigration, which has traditionally been the province of federal authorities.

In the case, the chamber challenges the Legal Arizona Workers Act, which requires that state’s businesses to use E-Verify, a service that purports to confirm the legal employment status of immigrants but has drawn criticism for inaccuracies and delays. Unlike the Arizona's controversial SB 1070 — which allows local police to enforce immigration laws but has been largely gutted by a federal judge — the Legal Arizona Workers Act has been upheld by district and appellate courts. The Supreme Court is expected to rule on the case soon. 

The legal principle at issue is the Supremacy Clause of the U.S. Constitution, which Morales explained essentially means that “all things being equal, federal law trumps conflicting state law.” The district court, however, upheld the Arizona Workers Act, and the 9th U.S. Circuit Court of Appeals — the same court that will has the SB 1070 appeal — concurred. “The state had the power, under its police powers, to regulate businesses and the licensure of businesses,” Morales explained.

Despite the appellate court's ruling, acting U.S. Solicitor General Neal Kumar Katyal petitioned the Supreme Court to review Candelaria. Katyal argued the Arizona provisions "disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country."

“The way that the U.S. Supreme Court decides on that case could be very instructive as to what happens in the SB 1070 case," assuming it also proceeds to the high court, Morales testified.

The Supremes could decide Candelaria before the Texas Legislature adjourns next year, says Austin-based immigration attorney Michael Golden, giving state lawmakers time to crafting their own immigration enforcement measures and guidance on how to do so. “The court’s term runs from October to June, and they strive very, very hard to actually issue an opinion in every case in the term where it is heard,” he says, though some decisions come on the term's last day.

The legal resolution of Arizona's SB 1070 will take much longer. But Texas lawmakers could still look to the provisions that already survived court scrutiny as a road map for their own legislation. Collectively, Morales told them, those provisions could be called “anti-sanctuary-city” bills. Though not as sweeping as some immigration measures that lawmakers will undoubtedly entertain, they could represent low-hanging fruit to anti-immigration hardliners.

The DOJ initially argued that SB 1070, in its entirety, was preempted by federal law and should be completely enjoined. But Morales said the district court instead looked at the bill line by line and left some provisions intact. The court, for instance, left standing a provision that prohibits Arizona officials from limiting enforcement of federal immigration laws and another that requires state officials to work with federal officials on enforcement. Another provision that survived court scrutiny allows Arizona residents to sue state and local government for actions that allegedly limit the enforcement of federal immigration law.

The controversial segments of the bill that the court did reject, Morales explained, stemmed from U.S. District Judge Susan Bolton’s interpretation that they were "so intertwined with federal laws" that they overstepped state authority. Arizona promptly filed an appeal with the 9th Circuit last month after Bolton enjoined three of SB 1070’s most controversial provisions, including a mandate that made it a state crime to fail to apply for or carry immigrant registration papers; another that made it a crime for unauthorized immigrants to solicit, apply or perform work; and a third that authorized warrantless arrests in cases where there is probable cause to believe the suspect has committed an offense punishable by deportation. But a final conclusion in that case — and the insight that it could provide to Texas lawmakers — could be years away.

State lawmakers aren’t likely to sit idly by until SB 1070 winds through the appeals process — especially when the clamor for lawmakers to take action is reaching a fever pitch, says state Rep. Burt Solomons, R-Carrollton, the chairman of the State Affairs Committee. The committee likely will entertain a host of immigration legislation next year (though whether Solomons remains the chair won't be determined for several months).

Solomons says most lawmakers will want to be “thoughtful” about any legislation, but he doubts those most intent on filing legislation will take a wait-and-see approach. “It’s an emotional issue, and a lot of legislators are being asked this session to try to do something,” he says. “It doesn’t mean you have to pass 30 bills. It doesn’t mean you have to pass 10 bills. It just means: Do something that has significant value on this issue."