Supreme Court Rules 5-3 to Uphold Arizona Employer

By Chad Burchard | June 6, 2011

Last Thursday the U.S. Supreme Court issued its decision in Chamber of Commerce v. Whiting in which it voted to uphold an Arizona law that imposes state penalties on employers who hire illegal aliens.

Advocates of tougher immigration enforcement hailed the Court’s decision. “No longer will companies be able to ignore the rule of law and hire illegal aliens, shutting out legal Arizona workers,” wrote Arizona State Senator Russell Pearce, who helped pass the law, in a recent column. [Russell Pearce, Supreme Court decision a major victory for AZ and the American worker, East Valley Tribune, May 27, 2011]

The law, officially titled the Legal Arizona Workers Act of 2007, prohibits employers from knowingly or intentionally hiring an “unauthorized alien.” Businesses that violate this provision can have their business licenses revoked as punishment. The law also mandates that all Arizona employers use E-Verify (an internet-based system offered by the federal government) to confirm their employees’ legal eligibility to work in the United States.

The Chamber of Commerce and various civil rights organizations quickly moved to challenge the law. They argued that the provisions of the law allowing for the revocation of licenses and requiring the use of E-Verify were preempted by federal immigration law. The federal district court and the Ninth Circuit Court of Appeals held that these provisions were not preempted. The Supreme Court reached the same conclusion.

Chief Justice John G. Roberts authored the majority opinion. He was joined by Justices Samuel A. Alito, Anthony M. Kennedy, Antonin Scalia and, for most of the opinion, Clarence Thomas. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsberg, wrote a dissent. Justice Sonia Sotomayor also dissented but wrote her own opinion. Justice Elena Kagan recused herself, having worked on the case while serving as U.S. Solicitor General.

The Court’s opinion began with an extensive summary of the legal and regulatory framework set up to prevent the hiring of illegal immigrants. It also reaffirmed its holding in a 1971 case, De Canas v. Bica, that a California law “prohibit[ing] the knowing employment” of illegal immigrants fell “within the mainstream of [the State’s] police power” and was thus not preempted by federal immigration law.

However, the Court noted that since De Canas was decided, Congress had passed the Immigration Reform and Control Act of 1986 (IRCA), which made it “unlawful for a person or other entity … to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.”

Eventually the Court turned to the Arizona law and its licensing provision. Most of the Court’s analysis focused on the definition of the term “license.” This was because IRCA contains language specifically preempting “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, recruit or otherwise refer for a fee for employment, unauthorized aliens.”

The majority emphasized the plain meaning of the term, rejecting the Chamber of Commerce’s argument that “the Arizona law is not a ‘licensing’ law because it operates only to suspend and revoke licenses rather than to grant them.” The Court cited dictionary and federal statutory definitions of the term “license” and concluded that the Arizona law clearly qualified as a “licensing” law under IRCA. The Court added that the Chamber’s construction of the word was “contrary to common sense” as “[t]here is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.”

The Court also upheld the Arizona law’s mandatory E-Verify provision. The Chamber argued that it was preempted because “mandatory use of E-Verify” conflicted with Congress’s intention “to develop a reliable and non-burdensome system of work-authorization verification.” In rejecting this argument, the Court noted that the legislation creating the E-Verify program contained “no language circumscribing state action” and that the federal government has consistently encouraged its use.

Justice Breyer’s dissent argued that Arizona’s law did not fall under IRCA’s “licensing” exception. Asserting that “statutory context must ultimately determine the word’s coverage,” Breyer surveyed federal immigration law and IRCA’s legislative history and concluded that “the words ‘licensing and similar laws’” should be read “as covering state licensing systems applicable primarily to the licensing of firms in the business of recruiting or referring workers for employment, such as the state agricultural labor contractor licensing schemes in existence when [IRCA] was created.” He also argued that the mandatory E-Verify provision was preempted because federal law made the program voluntary.

Justice Sotomayor’s dissent offered a different justification for finding the licensing provision preempted. Convinced that “the plain text” of the provision was ambiguous, Sotomayor thought it “necessary to look to the text of IRCA as a whole to illuminate Congress’ intent.” After reviewing various IRCA provisions, Sotomayor took issue with the fact that the majority’s holding would allow “state courts and other tribunals to adjudicate the question whether an employer has employed an unauthorized alien.”

The majority did not view this as a problem because the Arizona law requires state courts to consider “only the federal government’s determination” with respect to a person’s eligibility to work. It also noted that federal law obligates the federal government to respond to any state inquiries about the immigration status of an alien under its jurisdiction. Sotomayor argued that “immigration status” was not the same as “work authorization status” and considered it unlikely that “Congress would have intended for state courts inexperienced in immigration matters to adjudicate, in the context of licensing sanctions, the very same question that IRCA commits to federal officers, ALJs, and the court of appeals.”

Sotomayor agreed with Breyer’s reasoning in finding the Arizona law’s E-Verify provision to be preempted. Both noted in their dissents that the E-Verify program sometimes misidentifies people and voiced concerns about the potential for racial discrimination.

Although the Court’s decision did not address S.B. 1070—Arizona’s other more controversial anti-illegal immigration law that is currently working its way through the courts—immigration enforcement advocates see it as an indication of how the Court could rule in the future.

As Arizona Governor Jan Brewer said in a recent press release: “While S.B. 1070 and the Legal Arizona Workers Act are obviously different laws, I am hopeful and optimistic that the U.S. Supreme Court will hear Arizona’s future appeal of the 9th Circuit Court of Appeals’ decision against S.B. 1070 and apply the same general principle of federalism by rejecting claims of federal preemption.” [Press Release, Office of the Governor of Arizona, Statement by Governor Jan Brewer: Immigration Victory for Arizona as Supreme Court Upholds Employer Sanctions Law, May 26, 2011]

Opponents disagree. Cecilia Wang, an attorney for the American Civil Liberties Union, called the Court’s decision “a narrow one that only upholds Arizona’s specific law on employment verification” and that it “has nothing to do with S.B. 1070 or any other state or local immigration laws.” [Press Release, American Civil Liberties Union, Supreme Court Upholds Arizona Employment Law in Narrow Ruling, May 26, 2011]

Others speculate about the ruling’s potential to invigorate efforts at the state level to pass similar legislation. “It’s definitely going to embolden anti-immigration constituencies to work through state capitols,” the New York Times quoted Professor Peter J. Spiro of Temple University Law School as saying. [Adam Liptak, Illegal Workers: Court Upholds Faulting Hirers, The New York Times, May 26, 2011]

Whatever it might portend for the future, the Court’s decision in Whiting is undoubtedly a victory for Arizona’s immigration enforcement advocates.