The Supreme Court and the Language of Immigration Law

By Mark Walsh — December 09, 2010 4 min read
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The U.S. Supreme Court heard arguments on Wednesday in a case involving an Arizona law that penalizes employers who hire ‘unauthorized aliens.”

The case of Chamber of Commerce v. Whiting (No. 09-115) doesn’t directly involve schools, but educators in Arizona have closely followed immigration debates in their state. Besides the Legal Arizona Workers Act, the law at issue before the high court, there is the much-debated SB 1070, the controversial statute passed earlier this year that requires the police to check the immigration status of anyone they arrest or detain whom they believe may be in the United States illegally.

And there have been related controversies in the state that more directly involve the public schools, such as one involving citations issued by the state education department to school districts that have hired teachers who speak English with a Spanish accent. And in the spring, the state passed a law intended to eliminate ethnic studies in the schools.

What struck me about today’s argument is the language the justices used to frame the debate. The question in the case is whether Arizona’s law is preempted by federal immigration law, which generally is meant to be the comprehensive regulator of immigration matters. However, a 1986 federal immigration statute contains an ambiguous provision barring state and local laws that impose sanctions on employers “other than through licensing or similar laws.” Arizona’s effort seizes on this licensing clause and could mean the revocation of licenses for employers that knowingly hire unauthorized aliens.

Justice Samuel A. Alito Jr., who appeared sympathetic to Arizona’s law, repeatedly used the phrase “illegal aliens.”

What if another jurisdiction passed a law that said your general business license could be forfeited “if you knowingly hire an illegal alien?” Justice Alito asked the lawyer challenging the Arizona law.

Justice Sonia Sotomayor, who appeared somewhat less sympathetic to the state law, tended to use the phrase “undocumented aliens,” though she referred to “illegal aliens” at one point before quickly correcting herself and substituting “undocumented” for “Illegal.”

"[Y]ou don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic—undocumented aliens and was found to have violated it, that the state can revoke their license, correct, to do business?” Sotomayor said to Washington lawyer Carter G. Phillips at one point.

Although it is not reflected in the transcript, Justice Stephen G. Breyer, who also came across as skeptical of the Arizona law, could be heard from the press section catching himself from saying “illegal ali -", quickly substituting “illegal immigrant.”

What’s going on here?

The fact is, the language surrounding immigration issues is somewhat caught up in political correctness, with references to “illegal aliens” viewed as pejorative, at least by those sympathetic to immigrants.

“Scholarly and popular concerns about the phrase ‘illegal alien’ abound, pointing out that the phrase is racially loaded, ambiguous, imprecise, and pejorative,” says a law review article cited earlier this year in an immigration case decided by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The article by Beth Lyon appeared in 2004 in the University of Pennsylvania Journal of Labor and Employment Law. “Public policy regarding this [low-income immigrant worker] population is ill-informed, beginning with the simple fact that there is no settled or coherent terminology to refer to it,” Lyon said in her article."Confused, pejorative, and racist terminology facilitates punitive laws and differential treatment.”

Several commentators took note last December that in writing one of her first Supreme Court opinions, Justice Sotomayor used the terms “undocumented immigrants” and “undocumented workers” in a procedural case, Mohawk Industries Inc. v. Carpenter.

In October, the 3rd Circuit struck down a Hazleton, Pa., ordinance that was similar to Arizona’s employer-sanctions law. In its opinion in Lozano v. City of Hazleton, the court cited Lyon’s law review article as it explained the language that it would use. It noted that Hazleton “refers to persons who are not lawfully present within the United States as ‘illegal aliens,’” while the law’s challengers referred to such people as “undocumented immigrants.”

The court said “illegal alien” was less ambiguous under federal law than “undocumented immigrant.”

“Federal immigration law defines an ‘alien’ as ‘any person not a citizen or national of the United States,’'" the court noted [citations omitted]. “‘Immigrant’ is defined as ‘every alien except an alien who is within [certain specified] classes of non-immigrant aliens,’ and generally refers only to lawful permanent residents. Congress has preferred the term ‘alien’ to describe those persons who lack lawful immigration status.”

“We will use the word ‘alien’ rather than ‘immigrant’ because ‘alien’ is more precise, and precision is important to discussions in this area,” the 3rd Circuit said.

From the tenor of Wednesday’s oral arguments in the Arizona case, it does not appear the justices are in any more agreement about the merits of the Arizona law than they are about the language that should be used in the debate.

A version of this news article first appeared in The School Law Blog.