Member Article

On May 26, 2011, the United States Supreme Court handed down its decision in Chamber of Commerce of the United States of America v. Whitingin which petitioners had challenged a 2007 Arizona law imposing sanctions on businesses that hire unauthorized aliens.  Petitioners claimed that the Arizona law, the Legal Arizona Workers Act, was expressly, or alternatively, impliedly preempted by the Federal Immigration Reform and Control Act (IRCA).  In a split decision authored by Chief Justice Roberts, the Court held that the Legal Arizona Workers Act fell within ICRA’s statutory savings clause.  Chief Justice Roberts’ opinion was joined by Justices Scalia, Kennedy, and Alito. 

Justice Thomas joined Roberts’ opinion except as to those parts treating
petitioners’ claims of implied preemption and concurred in the result. 
Justice Breyer, joined by Justice Ginsburg, and Justice Sotomayor filed
separate dissenting opinions.  Justice Kagan recused herself and took
no part in the consideration or decision of the case.



The Legal Arizona Workers Act allows an individual to file a complaint
alleging that an employer has hired an unauthorized alien.  Filing of
the complaint triggers the attorney general or county attorney’s
obligation to verify the employee’s work authorization with the Federal
Government pursuant to 8 U.S.C. § 1373(c).  If the employee is
unauthorized, the attorney general or county attorney must notify
Immigration and Customs Enforcement, local law enforcement, and
institute proceedings against the employer.  Where an employer is found
to have knowingly or intentionally hired an unauthorized alien, she must
terminate all unauthorized employees and submit to probation. 
Depending on the employer’s mens rea, the court either has the
option or the duty to order the suspension of all business licenses for a
minimum of 10 days.  If an employer is found guilty of a second
violation (capable of occurring only at the same location and within the
probationary period), the result is the permanent revocation of all
business licenses. Where the employer has verified the employee’s
eligibility using the Federal E-Verify system, it has an affirmative
defense to the action.  The Legal Arizona Workers Act makes use of the
E-Verify system mandatory for all Arizona employers.



Petitioners argued that IRCA expressly preempted State imposition of
“civil or criminal sanctions” on employers of unauthorized aliens “other
than through licensing and similar laws.”  8 U.S.C. § 1324a(h)(2).  The
majority disagreed, holding that the Arizona law, on its face,
purported to establish licensing sanctions and that Arizona’s definition
of “licenses” subject to sanction mirrored the definition in the
Administrative Procedure Act.  Justice Breyer, dissenting, argued that
the Arizona law could be applied broadly to support the revocation of an
employer’s driver’s license for noncompliance, for instance.  Justice
Breyer argued that the licensing exception should be limited to “employment-related
licensing systems” (emphasis in original), such as employment placement
agencies.  In support of this argument, he noted that IRCA amended the
Migrant and Seasonal Agricultural Worker Protection Act (AWPA), which
implemented Federal regulations of agricultural labor contractors and
was intended to coexist with state licensing schemes.  Justices Breyer
and Sotomayor argued that the IRCA’s amendment of AWPA, together with
legislative history, indicated Congress’s desire to limit §
1324(a)(h)(2)’s savings clause to these particular licensing schemes. 
The majority disagreed, holding: “Arizona’s law falls within the plain
text of IRCA’s savings clause.  And . . . Congress’s ‘authoritative
statement is the statutory text, not the legislative history.’”  The
majority similarly dismissed petitioners’ claim that mandatory use of
the E-Verify system was expressly pre-empted, holding that under the
provision authorizing the E-Verify program, Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) § 402(a), only the Secretary
of  Homeland Security was constrained from mandating participation in
the program.



Discussing petitioners’ implied preemption claims, Chief Justice
Roberts, writing for a plurality, noted that licensing of state
businesses is not a traditional area of federal concern and that while
the law’s intended effect was to “result in more effective enforcement,”
“in preserving to the States the authority to impose sanctions through
licensing laws, Congress did not intend to preserve only those state
laws that would have no effect.”  Further, Chief Justice Roberts noted
that Congress’s continued renewal and expansion of the E-Verify program,
the Department of Homeland Security’s strong advocacy of its use, and
DHS’s amicus curiae brief stating that the E-Verify system was
capable of accommodating increased use all militated against finding
that Arizona’s mandatory E-Verify requirement was impliedly preempted.



The unspoken disagreement between the majority and dissenting opinions
seemed to concern the effect of the Arizona law.  The majority framed
the law as an effective means of inducing egregious violators to comply
with the law.  Justices Breyer and Sotomayor, on the other hand,
expressed concern that the Arizona law would cause firms to not hire
“foreign-looking” or “sounding” employees due to concern about their
immigration status.  Justice Breyer, in particular, argued that the
Arizona law altered the careful balance at the Federal level between
sanctions for hiring of unauthorized aliens and sanctions for employment
discrimination.  Finally, Justices Breyer and Sotomayor both expressed
concern with the E-Verify system.  Justice Breyer argued that the system
returned far too many false positives, a statistical reading denied by
the majority, and Justice Sotomayor worried about E-Verify’s ability to
handle the cost and traffic associated with increased use.



The Whiting decision will affect similar laws in other states. 
Several other states have enacted laws similar to the Legal Arizona
Workers Act, including Colorado, Missouri, Pennsylvania, Virginia, and
West Virginia.  In addition, Arizona’s controversial 2010 law require
police officers to verify the immigration status of detainees has
engendered similar legislation in other states and is almost certain to
come before the Supreme Court.

 

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