Article published Wednesday, June 2, 2010, at Fox News.

Illegal Alien Legal Challenge

By John R. Lott, Jr.

Little noticed, last Friday the Obama administration yet again tried to make it easier for illegal aliens to stay in the United States. In a brief filed with the Supreme Court, the administration asked the court to carve out a special exemption for businesses who break the law by hiring illegal aliens.

In every state, individuals must have a business license to do a huge range of jobs, be it a restaurant, stores, salvage, selling cars, cleaning people's houses, pest control, or other businesses. But people must get a criminal background check to get a license. Different states vary in terms of what crimes can disqualify one from getting a license -- some including misdemeanors not covered in other states.

Similarly, if you commit a crime, your business license is very likely to be revoked. The same is true for professional licenses for lawyers, doctors, or even barbers. The logic for these rules is pretty strong. If someone commits a crime, states have decided those people can't be trusted in dealing with consumers.

Both state and federal crimes are included in these criminal background checks, and it has always been up to the states to determine what crimes will bar people from being licensed. This is what the Obama administration now wants to change. The Obama administration wants crimes involving immigration violations specifically excluded from their licensing decisions.

When Obama's Secretary of Homeland Security Janet Napolitano was Arizona's governor back in 2007, she signed a law that added hiring illegal aliens to the list of crimes for which a business license could be revoked. Napolitano didn't think that there were any legal problems with the law, and even defended it in court. Indeed, even the Ninth Circuit Federal Appeals Court -- known for its left wing views -- rejected challenges by illegal alien rights groups.

But the Obama administration has tried to rationalize its challenge to the Arizona law.

"Those provisions disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country," Acting Solicitor General Neal Katyal wrote the Supreme Court. "There is no reason to believe that Congress intended a result that would subvert the purpose and operation of its general prohibition on state sanctions."

As states have always had the power to determine how criminal activity can cost people their business licenses, why didn't the original Federal immigration law ban immigration law violations being considered?

But instead of guessing whether Congress "intended" such a result in 1986, there is a simple solution: Have Congress pass a law stating that immigration violations are the one crime that states must not consider for licensing. With massive overwhelming Democratic majorities in both the House and Senate, Democrats can do virtually anything that they want.

Part of the Obama administration's motivation for this Supreme Court appeal is to create a legal precedent that only the Federal government can deal with immigration issues. They aim to use such a precedent to strike down the new Arizona immigration law that was just signed this year that allows local and state police to enforce Federal immigration law.

Asking courts to rewrite laws doesn't show much respect for the rule of law. But maybe, despite massive Democratic majorities in both the House and Senate, the Obama administration knows that it doesn't have the votes to pass such radical reform.

John R. Lott Jr. is a contributor. He is an economist and the author of "More Guns, Less Crime (University of Chicago Press, 2010), the third edition of which was published in May.".

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