Supreme Court: key provision in Arizona immigration law is OK

Yesterday 5/26 the U.S. Supreme Court upheld Arizona’s 2010 immigration law, SB 1070, in particular the provision under which businesses are penalized for hiring illegal workers. (The Court did not rule on the most publicized part of the law, which is to authorize police officers to inquire about immigration status.) This ruling will likely accelerate state initiatives to create their own immigration law enforcement programs.
The case is Chamber of Commerce of America vs. Whiting et al. Here is the key passage from the decision:
The [Federal] Immigration Reform and Control Act (IRCA) makes 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.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio- late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).
IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsi- bility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.
Against this stautory background, everal States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.
The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspension and revocation provisions were both expressly and impliedly pre- empted by federal immigration law, and that the mandatory use of E- Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit affirmed.
Held: The judgment is affirmed.
Justice Breyer’s minority opinion says, “Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. (excepting professional licenses, and water and environ- mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s pre- emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work- ers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.”
According to the New York Times, “The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”
The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”


Chief Justice Roberts wrote that the word “licensing” should be read broadly to allow states to supplement federal efforts to prevent the hiring of illegal workers. His decision was joined by Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and, for the most part, Clarence Thomas.
The NY Times article in full:
Justices Uphold Law Penalizing Hiring of Illegal Immigrants
By ADAM LIPTAK
Published: May 26, 2011
WASHINGTON — The Supreme Court on Thursday upheld an Arizona law that imposes harsh penalties on businesses that hire illegal immigrants.
The 5-to-3 decision appeared to endorse vigorous state efforts to punish employers who intentionally hire illegal workers. The majority opinion, written by Chief Justice John G. Roberts on behalf of the court’s five more conservative members, said that Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia had recently enacted laws similar to the one at issue in the case.
The decision did not directly address a more recent Arizona law that gives the police greater authority to check the immigration status of people they stop.
The United States Court of Appeals for the Ninth Circuit blocked enforcement of that law in April, and the case may reach the Supreme Court soon.
The challenge to the Arizona law that was the subject of Thursday’s decision was brought by a coalition of business and civil liberties groups, with support from the Obama administration.
They said the law in question, the Legal Arizona Workers Act, conflicted with federal immigration policy.
The act was signed into law in 2007 by Janet Napolitano, a Democrat who was then the state’s governor. Ms. Napolitano is now secretary of the Department of Homeland Security.
The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”
The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”
Chief Justice Roberts wrote that the word “licensing” should be read broadly to allow states to supplement federal efforts to prevent the hiring of illegal workers. His decision was joined by Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and, for the most part, Clarence Thomas.
Peter J. Spiro, who teaches immigration law at Temple University, said the majority’s broad reading would be consequential. “In some ways, this becomes an exception through which states can drive a truck,” he said. “It’s definitely going to embolden anti-immigration constituencies to work through state capitals.”
There is reason to think that those constituencies will meet with some success, judging from the fact that 13 states filed a brief supporting Arizona.
But Robin S. Conrad, a lawyer with the U.S. Chamber of Commerce’s litigation unit, said in a statement that “the decision does not give states or local governments a blank check to pass any and every immigration law” and that only state laws consistent with the federal one were permissible. The Chamber of Commerce was a plaintiff in the suit.
Ms. Conrad added that “businesses from Main Street to Wall Street are overwhelmed by a cacophony of conflicting state and local immigration legislation” and that Congress should bring order to the area.
Cecillia D. Wang, a lawyer with the American Civil Liberties Union’s Immigrants’ Rights Project, also urged a cautious reading of the decision, saying that it was narrowly tied to the Arizona law. The A.C.L.U. was part of the odd-bedfellows coalition that had challenged the law.
Jay Sekulow, a lawyer with the American Center for Law and Justice, a conservative public interest law firm that filed a brief urging the court to uphold the law, said the ruling was “a victory for Arizona and other states” that “provides a realistic roadmap” for enacting legislation that does not run afoul of the federal law.
Justice Stephen G. Breyer, in a dissent joined by Justice Ruth Bader Ginsburg, said the word “licensing” in the federal law should be read narrowly to mean “employment-related licensing systems” and not all licenses. “Why not an auto licensing law?” he asked of the majority’s interpretation. “Why not a dog licensing law?”
Chief Justice Roberts responded that Congress could easily have limited the phrase had it wanted to. “If we are asking questions,” he added, “a more telling one may be why, if Congress had intended such limited exceptions to its prohibition on state sanctions, it did not simply say so, instead of excepting ‘licensing and similar laws’ generally?”
Chief Justice Roberts wrote that the Arizona law was a measured response to real problems and that “licensing sanctions are imposed only when an employer’s conduct fully justifies them.”
He added that there was no reason to fear that the state law would lead to discrimination against Hispanics who were in the United States lawfully.
“The most rational path for employers,” the chief justice wrote, “is to obey the law — both the law barring the employment of unauthorized aliens and the law prohibiting discrimination — and there is no reason to suppose that Arizona employers will choose not to do so.”
But Justice Breyer said the state law disrupted a carefully calculated balance between competing Congressional goals and that it “seriously threatens the federal act’s antidiscrimination objectives.” The state law increased penalties for hiring illegal workers, he said, but it left “the other side of the punishment balance — the antidiscrimination side — unchanged.”
The decision, Chamber of Commerce v. Whiting, No. 09-115, also upheld a second aspect of the Arizona law, this one making mandatory an otherwise voluntary federal program, E-Verify, that allows employers to validate whether potential employees are authorized to work.
In his dissent, Justice Breyer said it was a mistake to require use of a “pilot program” that was “prone to error.”
Justice Sonia Sotomayor wrote a separate dissent. Justice Elena Kagan recused herself from the case because she had worked on it as United States solicitor general.
“I cannot believe,” she wrote, “that Congress intended for the 50 states and countless localities to implement their own distinct enforcement and adjudication procedures for deciding whether employers have employed unauthorized aliens.”

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