Today, in a 5-3 vote, the Supreme Court ruled in favor of the Legal Arizona Workers Act, a law passed by Arizona in 2007 that requires employers to use a controversial electronic employment verification program, E-verify, and establishes a regime of state-level sanctions for employing undocumented workers.
The case, Chamber of Commerce of the United States v. Whiting, has often been pointed to as a predictor of how the Supreme Court might rule on a challenge to the draconian immigration law Arizona infamously passed last year, SB-1070. While many critics of SB-1070 hoped that the Supreme Court would set an important legal precedent in Whiting that would boost the case against state and local immigration laws, the decision itself doesn’t expressly appear to either advance nor significantly hinder the case against Arizona’s latest sweeping immigration law.
The main issue in Whiting was whether Arizona can enact a law that allows the state to either suspend or revoke the business licenses of state employers who knowingly or intentionally employ undocumented immigrants. Under federal immigration law, states are preempted from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ…unauthorized aliens [emphasis added].”
In the majority opinion issued today, Chief Justice John Roberts upheld the Arizona law, arguing that “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.” “The Chamber’s reliance on IRCA’s legislative history to bolster its textual and structural arguments is unavailing given the Court’s conclusion that Arizona’s law falls within the plain text of the savings clause,” reasoned Roberts. (In simpler terms, it falls within the parameter of the bracketed exception italicized above).
Today’s opinion affirms the decision delivered by the 9th Circuit Court of Appeals in Whiting — the same court which upheld an injunction against SB-1070 on the basis that several of its provisions are unconstitutional. Why did the 9th Circuit rule against federal preemption in Whiting and in favor of it in U.S. v. Arizona last month?
First of all, SB-1070 is a much broader law that contains several provisions that raise far more legal issues than the one the Supreme Court addressed today. Had the Supreme Court ruled in favor of the Chamber of Commerce’s arguments in Whiting, it almost certainly would have doomed Arizona’s new sweeping immigration law. But it doesn’t work the other way around. SB-1070 is significantly more aggressive in its scope and substance, touching on the role of state and local law enforcement, Fourth Amendment rights, and federal supremacy in foreign relations.
More specifically, SB-1070’s treatment of the employment of undocumented workers is substantively different. The 9th Circuit touched on this distinction in its decision to strike down SB-1070. Referencing a case similar to Whiting, the 9th Circuit explained, “the specific issues in these cases do not overlap.” Just as the Supreme Court reasoned, the 9th Circuit argued that the Legal Arizona Workers Act “fits within Congress’ intended meaning of ‘licensing’ law’ and that “the INA [Immigration Nationality Act], which makes the use of E-Verify voluntary, does not impliedly preempt Arizona from mandating that employers use the E-Verify system.”
However, SB-1070 went a step further by actually criminalizing “the solicitation, application for, or performance of work by an undocumented immigrant.” And that’s where the 9th Circuit drew the line, arguing that both federal immigration law combined with “legislative history demonstrating Congress’ affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment, likely reflects Congress’ clear and manifest purpose to supercede state authority in this context.” There is an explicit exemption referencing business licenses in federal law that allows the Legal Arizona Workers Act to stand. But SB-1070 goes above and beyond that exemption and wanders into the territory of what is expressly preempted.
Finally, just because Arizona’s E-Verify law has been deemed constitutional does not meet it is either an effective or an efficient policy. In his dissent, Justice Breyer wrote that “either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employment” and could lead to “unlawful discrimination” in the workplace. Justice Sotomayor also cautioned against the creation of a patchwork of state and local immigration laws.