InsideCounsel's August cover story, “How the immigration policy stalemate is hurting businesses and the economy,” examines the recent 5-3 Supreme Court ruling that struck down much of Arizona's controversial 2010 immigration law and its implications for employers nationwide. While the decision in Arizona v. U.S. eased many employers' anxieties by affirming the supremacy of federal immigration law over a hodge-podge of state legislation, some experts say that U.S. immigration policy is still stymieing economic growth.

Preemption Affirmed

In its Arizona v. U.S. ruling, the court overturned three of the immigration law's four provisions, one of which barred illegal immigrants from seeking work or being employed in Arizona. Writing for the majority, Justice Kennedy noted that federal law has already laid down guidelines for employment verification and alien registration, which preempt state regulations.

Some experts believe the court's ruling will dissuade other states from passing immigration legislation of their own. “Employers can breathe a bit easier with the implications from this ruling that the growing trend of a patchwork of different states' immigration laws may finally abate,” said Jackson Lewis Partner Sean Hanagan.

Enhanced Enforcement

In his first term, President Obama has shifted the focus of immigration policy from U.S. Immigration and Customs Enforcement (ICE) raids to ICE paperwork audits and fines, with the aim of deporting illegal immigrants with criminal records. He has also instituted policies such as the recent DREAM Act, which would allow some young illegal immigrants, brought to the U.S. as children, to remain in the country.

“The nature of enforcement has changed,” according to Ford & Harrison Partner Charles Roach. “Now the focus is on the employer and doing desk audits of I-9s. The incidence of I-9 audits has increased in number, frequency and fines under the Obama administration.”