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High court showdown on immigration law

Arguments on an Arizona crackdown on employers who hire illegal workers may have ended in a draw.

WASHINGTON - A Supreme Court showdown over whether states can aggressively enforce laws against illegal immigrants may have ended in a draw Wednesday.

If so, Arizona will win, and its three-year-old law that cracks down on employers who knowingly hire illegal workers will stand. It could serve as a model for other states and cities that seek to adopt stricter enforcement measures.

But if Justice Anthony M. Kennedy joins with his more liberal colleagues, as he did for part of Wednesday's argument, it could signal trouble in the future for other laws targeting illegal immigrants. Those include another Arizona law that requires police to check the immigration status of suspicious people who are stopped - a case that could reach the court next term.

At issue Wednesday was the fate of the Legal Arizona Workers Act, which imposes the so-called business death penalty - suspending or revoking their business licenses - on employers who are caught twice knowingly hiring illegal workers.

Lower courts upheld the law, but the Obama administration and U.S. Chamber of Commerce joined in arguing that the state law should be voided because it conflicts with the federal government's exclusive authority over immigration.

But those challenging the law were at a disadvantage Wednesday because new Justice Elena Kagan, who came from the Obama administration, announced she would not participate in the decision in the case, Chamber of Commerce v. Whiting. That set the stage for a possible 4-4 split; such an outcome would uphold Arizona's law but set no legal precedent.

The stakes were high, since it has been more than 30 years since the Supreme Court ruled on a clash between a state and the federal government over immigration. Such clashes have become common in recent years as states and cities consider new enforcement measures that target illegal immigrants.

Kennedy, often the swing vote, did not say definitively how he would decide. But near the end of the argument, he said he agreed with criticisms voiced by the three liberal justices. Arizona's strict requirements on employers seem to be "an almost classic example of a state doing something that is inconsistent with a federal requirement," he said.

If Kennedy followed that view, he could cast a fourth vote to strike down Arizona law, one short of a majority, but potentially a fifth vote with Kagan the next time.

Justice Antonin Scalia took Arizona's side, saying it was forced to adopt strict measures because of the lack of federal enforcement.

"That's the only option" the state had, he said. Arizona faced "serious trouble financially because of unrestrained immigration."

Scalia's fellow conservatives sounded as though they would join him in support of Arizona's law.

In challenging Arizona, acting U.S. Solicitor General Neal Katyal said Congress in 1986 passed a "comprehensive" immigration law that did not allow states to go their own way. It "broadly swept away state and local laws" that punished employers for hiring illegal workers, he said.

If Arizona can adopt its own sanctions for employers for hiring illegal workers, Katyal said, then "40,000 localities can do it.. . . It would permit all the states to have their own laws."

The liberal justices agreed that Arizona was imposing extra "sanctions" on employers. "If you hire an illegal immigrant, your business is dead," Justice Stephen G. Breyer said.

But Arizona Solicitor General Mary O'Grady stressed that the 1986 law allowed states to enforce "licensing" laws, and said Arizona enforced its law by taking away a business license.

The conservative justices picked up her argument and said the state was free to do that under the federal law.

Read a transcript of the court argumentsin the Arizona case