|Jottings By An Employer's Lawyer|
Thursday, May 26, 2011
Arizona Immigration Law Valid According to Divided Supreme Court
One concern raised by the Chamber and the dissenting justices is that employers will choose not to hire Hispanic employees in order to avoid any threat of the rather severe sanctions that can be imposed on them. The majority opinion authored by Justice Roberts rejected that argument:
As a textbook statement of what the world should be like, I would not quarrel with the logic of Justice Robert's statement.
As someone who every day sees how the real world works, it could not be further from reality. Employers who have had too many instances where their proper actions have been sustained only after lengthy and expensive court processes, will be hard to convince at the sub-conscious level that this scheme does not pose potential problems for them and alter their actions accordingly.
Today's decision leaves me with two distinct thoughts about the Supreme Court, not the merits of this case.
First, I regret that we no longer look for regular practicing lawyers for the Supreme Court, but choose them from judges, government lawyers and appellate specialists. From my small niche of labor and employment law, it seems to me that the Court is far out of touch with what happens in the real world of the workplace.
Secondly, it makes me think about the political rhetoric against "judicial activism" and that "judges should not make law."
I don't think anyone seriously believes or can even say with a straight face that when Congress passed the savings clause that is the subject of this lawsuit that they were consciously deciding that states should be able to gain such a dominant place in the enforcement of the immigration laws. The situation was much different then, but no one really believes that the Congress which passed IRCA, which contains the language quoted above, made a conscious decision to endorse legislation like the Arizona statute. The fact is Congress didn't think about it in this context, nor was there probably any reason for them to do so.
That is not a criticism of the Supreme Court for doing their job. Because Congress didn't think about it in this case, and can never think of every possible situation, we have given to the courts the powers to fill in the gaps, to supply the answers where Congress gave us none. Hopefully that is done using consistent legal principles, but even doing so will rarely point to one correct answer; in this case it clearly resulted in multiple answers. The only way we know what is the "correct answer" is by counting the number of judges on each side.
Which means nothing more than that all the political rhetoric about appointing judges who will not make law, just follow it, is just political bs. Everyone wants judges who will apply the principles the way they want them applied in these situations. That's our system and that's fine.
What bothers me is politicians who either don't understand the system, or more cynically understand the system, but are not honest about it and hide behind the false statement that judges' job is not to make law, just interpret it.
I have not studied it enough to know whether I think today's decision was a legally correct one or not. What I do know is that in making it and in his opinion for the court, it would be ludicrous to say that Justice Roberts was just acting as an umpire. His job is very different, and frankly much more important, than that. In this case, Congress did not give us the clear cut answer and now the Court has.