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5. News from the Courts:


CA Students eligible for in-state tuition regardless of immigration status


The Associated Press reports that the California Supreme Court ruled that students who graduate from a California high school and attend at least three years of high school in the state are eligible for in-state tuition rates at California public colleges and universities, regardless of their immigration status.  The lawsuit Martinez v. Regents of the University of California argued that federal immigration law prohibited states from granting illegally present immigrants special privileges not available to U.S. citizens, such as those who reside outside of the state and must pay full cost for higher education in California.  However, the court found that federal law did not bar California from offering tuition equality to its students.

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Supreme Court hears challenge to Arizona employer sanctions law


The ACLU reports that the U.S. Supreme Court heard oral arguments in Chamber of Commerce v. Whiting, a lawsuit challenging the Legal Arizona Workers Act of 2007.  Arizona’s law sought to impose penalties on businesses that employed illegally present immigrants.  In addition, the law mandated employers to check a new employee’s work authorization status using the E-Verify database, a program the federal government explicitly designated as voluntary.  The Supreme Court’s decision is highly anticipated because it will be the court’s first ruling on whether cities and states can enforce their own immigration laws or whether the issue is solely governed by federal authority.  According to the National Conferences of State Legislatures, 44 states currently have pending measures on immigration


Carter G. Phillips opened on behalf of the petitioners, arguing that the congressional regulation of immigrant employment via the 1986 Immigration Reform and Control Act (IRCA) ‘provided for an exhaustive and exclusively federal method of bringing to the attention of federal authorities, problems and worker authorization.’  As such, state laws such as Arizona’s would be explicitly prohibited.  Acting Solicitor General Neal Kumar Katyal further argued that through IRCA, ‘Congress broadly swept away state and local laws, preempting any sanction upon those who employ unauthorized aliens.’


Representing Arizona, Mary R. O’Grady countered that while Congress prohibited the states from imposing civil or criminal sanctions, it allowed state or local law to impose sanctions through an exception for ‘licensing and similar laws.’  She argued that Arizona was doing so by establishing a scheme that provides for the suspension and revocation of state licenses for employing illegally present immigrants.  In his opening, Phillips had anticipated this defense and noted the unlikelihood that Congress had intended this minor exception to allow for an entirely alternate enforcement mechanism by the states.  While Justice Scalia pointed out that Congress similarly did not intend for the decades of lax enforcement and unrestrained immigration that motivated Arizona to pass its law, Phillips argued that

preemption standards were nevertheless put in place when the statue was enacted in 1986 and that Congress said specifically that immigration laws should be enforced uniformly.        


In addition, the Justices consistently pointed to a major difference that existed between federal law and Arizona’s law.  Under federal statute, if an employer looks at an employee’s Social Security card and driver’s license he is ‘home free’ and cannot be prosecuted for violating immigration law.  Under Arizona’s measure, however, an employer must additionally use E-Verify and can thus still be prosecuted for a violation even though he complied with federal law (which classifies E-Verify as voluntary). 


Analysts believe the absence of Justice Kagan’s recusal from the proceedings due to her prior role in the case as Solicitor General could affect the case’s outcome. A tie vote would mean that the lower court ruling in favor of the State of Arizona would stand.


More information about the case is available online at:

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