The Future of Arizona’s Illegal Immigration Law

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The United States Supreme Court has just struck an important blow against illegal immigration. In the case of Chamber of Commerce of the United States of America v. Whiting, the Court upheld by a 5-3 vote the constitutionality of an Arizona licensing law which suspends or revokes the licenses of businesses that knowingly or intentionally hire illegal immigrants.

Unlike the stance that Justice Kagan appears to be taking with regard to challenges to Obamacare, Justice Kagan did the right thing here and recused herself in this particular case.

Chief Justice John Roberts’ opinion for the majority provides a window into the court’s analysis of states’ powers to reverse the flow of illegal aliens into their states. The opinion has huge implications in undermining the federal preemption arguments that have successfully challenged Arizona’s other major illegal immigration control law (SB 1070), which mandates that law enforcement personnel ask about the immigration status of those they detain (for infractions unrelated to immigration) if there is reason to suspect the detainee may not be in the country legally.

The challenge to the constitutionality of SB 1070 is still wending its way up to the Supreme Court. But the court did have the opportunity to hear and reject challenges to the constitutionality of the Legal Arizona Workers Act of 2007, which allows Arizona courts to suspend or revoke the licenses necessary to do business in the state if an employer knowingly or intentionally employs an illegal alien.

Under the Arizona licensing law, if an individual files a complaint alleging that an employer has hired an illegal alien, the attorney general or the county attorney first verifies the employee’s work authorization with the federal government. The Arizona law is careful in prohibiting state, county, or local officials from attempting “to independently make a final determination on whether an alien is authorized to work in the United States.”

If the inquiry to the federal government reveals that a worker is an illegal alien, the state attorney general or the county attorney must notify United States Immigration and Customs Enforcement officials, notify local law enforcement, and then bring an action against the employer. The state court may only consider the federal government’s determination whether the employee in question is an illegal alien.

In other words, much like SB 1070, the Legal Arizona Workers Act of 2007 complements federal enforcement of the nation’s immigration laws. And it does not change or contradict the federal laws themselves.

Nevertheless, the Chamber of Commerce and various businesses and civil rights groups opposing Arizona’s licensing law argued that the state law’s license suspension and revocation provisions were preempted by federal immigration law. They contend that the federal Immigration Reform and Control Act (IRCA) blocks the states from interfering with federal enforcement of the nation’s immigration laws. This should sound very familiar to those who have been following the challenges to Arizona’s SB 1070.

The federal Immigration Reform and Control Act 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 who violate this prohibition may be subjected to federal civil and criminal sanctions.

At the same time, IRCA also restricts the ability of states themselves to combat employment of illegal immigrant workers. It 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.”

The Supreme Court reasoned that the parenthetical exception to this provision — i.e. “other than through licensing and similar laws” — meant that Arizona had the power to use such laws for the purpose of penalizing businesses that hired illegal immigrants. The court interpreted this exception very broadly.

Chief Justice Roberts, writing for the majority, concluded:

The Arizona law defines “license” as “any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in” the State…Apart from that general definition, the Arizona law specifically includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State…even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings clause.

Chief Justice Roberts relied on what he called “common sense” in interpreting the scope of the preemption carve-out for “licensing” laws.  He also rejected the argument that Congress intended the federal immigration system to be so exclusive that the states have no role at all.

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  • john

    There is no future, kill it.

  • Dirk D.

    also, this website is a joke.

  • Eric

    its not Arizona’s "Illegal Immigration Law", its "Arizona’s Illegal" Immigration Law

    • Bill

      Isn't illegal immigration "illegal"?

  • Chest Rockwell

    Bad joke at that. SB1070 has zero chance due to the "lawful contact" clause. There is no such animal as lawful contact defined in AZ state or US law.

    The Constitution's Fourth Amendments says specifically:
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, BUT UPON PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    I see no legal contact mentioned.

    • Rifleman

      So sue 'em, lol.

  • Wayde Johnson

    Apparently those who oppose Arizona's attempts to make and enforce its own laws do not realize the federal Immigration Reform and Control Act 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)).
    Since the law is clear that employers who violate this prohibition may be subjected to federal civil and criminal sanctions but IRCA does not want the state to do anything to the illegal employees, the state must do something to the businesses as allowed by IRCA.
    The IRCA pre-empts “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.”
    Clearly, states should be able to impose civil or criminal sanctions through licensing and similar laws upon those businesses that employ or recruit unauthorized aliens.
    This is a step in the right direction. States should be able to refuse licenses to businesses as the states see fit.

    • james Marott

      if we get rid of a million unauthoriized aliens and hire u s a citizens it is a start of getting this great country back where we all can have jobs. So go Arizona we love you.

  • Jenny

    I agree — states should be able to impose civil or criminal sanctions through licensing and similar laws upon those businesses that employ unauthorized aliens.

  • RichardRose

    Here we have another example of a reporter consciously or unconsciously manipulating text to make it sound like Arizona's law against illegals is in itself somehow illegal. Same as they apply to the conflict in Israel. Shame on you! How about some accuracy in reporting without your personal bias for a change.

    • Joseph Klein

      What are you talking about? The entire article supports Arizona's anti-illegal immigration laws and posits that the Supreme Court's decision yesterday rejecting chalenges to Arizona's law is an important step in the right direction and bodes well for its eventually upholding SB 1070.

      • Rifleman

        I think he's in his own little world there, and it's far, far away, lol.

  • Gilbert

    I am happy with the justice's ruling. This article is an opinion piece and tries to persuade the reader that SB1070 will be supported by the Supreme Court. The fact is that none of us know yes or no whether SB1070 will pass the court.

    Relating to the above decision on the employer sanctions law, the public should look at the groups against it and their arguments. Businesses that use Illegal Aliens as cheap low cost labor are the businesses opposed to the employer sanctions law. Their argument though is that businesses will now discriminate against people that speak Spanish fearing that they maybe Illegal. In Arizona, there are many businesses that employ large work forces that speak primarily Spanish, most of who are here legally or are citizens that prefer to speak Spanish. In Arizona, being a Spanish speaker will not prevent you from getting a job (though it may limit your prospects as it would for anyone that does not have a good grasp of English). The argument is weak in my view.

    The first three posters disagree with the author. Instead of insults or dismissal, they should provide their reasons that the law should not be supported by the Supreme Court.

    • Rifleman

      I think it's weak too. My company's small but global, the ability to speak any foreign language is a plus, especially Spanish. It's easy to check, and legal immigrants are helped by it. Illegal immigration hurts them more than most, and us allowing it is a slap in the face to those doing it right.

  • magyart

    I applaud this decision by the Supreme Court and hope that most states pass similar laws. Although, I would rather see federal legislation forcing all employers to use E-Verify for all employees. The federal SAVE Act would accomplish this.

    Nothing in this law conflicts or preempts federal law, as the U.S. Chamber of Commerce and the U.S. Attorney General claimed. The court ruled the state is on "correct" legal grounds when state law mirrors federal law. This ruling may be a good indicator the SB1070 will be upheld.

    Visit Numbers USA and ALIPAC websites and help fight illegal immigration.

  • Fred Dawes

    "And who said?, "THE BUSINESS OF AMERICA IS BUSINESS", Look guys this nation has no future our government is about the political and foreign WELFARE Noy you or your world.

  • Fred Dawes

    oh did i forget NAFTA Removed all US Laws are replaced all of our laws not mexican laws under the fed code. in other words we have no laws only the rule of business.

  • Frank95054

    Why the GOP will lose in 2012! The Chamber of Commerce and the Grand Old Party are joined at the hip! Clearly, the GOP supports illegal immigration so businesses can replace American workers with low wage illegals. So, when I hear that the Democrats support illegals for votes, I also hear that the GOP supports illegals too, but for different reasons. Neither party looks out for the American people. Both parties violate the Constitution. I feel its Jeffersonian time! Time for the people to rise up and throw the bastards out! Lets call the new party the Peoples Party. No one else need apply.

    • Steve


    • Supreme_Galooty

      Just one minor problem with your comment: "Clearly, the GOP supports illegal immigration…." This is NOT "Clearly," this is vaguely true. Only SOME in the GOP support illegal immigration, but they won't say so. Many in the GOP do NOT support illegal immigration. When you spout off, 'tis best not to insult someone with faulty information.

  • Steve Chavez

    When Obama was in El Paso gloating and moating, he said the "border is secure." A LATE NIGHT show had a doctored tape of Obama saying that and behind him were people climbing over the fence! iN A DOCUMENTARY on illegals from El Salvador, a family of young adults hopped on trains until after a few days, they were exhausted and went into the town and asked a man if they could sleep in his yard. He declined "because I could get six years in jail" for harboring illegals! CALDERON gave a speech to a joint session of Congress and he SPIT ON our immigration laws and the Democrats gave him standing ovations. Obama then wants to secure ISRAEL'S borders???

    Our two New Mexico Democrat Senators, Tom Udall and Jeff Bingaman, are requesting up to six new judges to help in the caseload of illegal immigrants. BUT THEY SUPPORT illegals crossing so they are then the cause of the caseload!!! But, they could be putting in their own activist Judges who will then overturn any immigration laws or enact any law favorable to illegals!

    What most of you don't know, is several city officials from the NM border city of Columbus have been indicted for buying the best of weapons and then transporting them across the border to sell to the drug lords. Columbus, only a few miles from El Paso and JUAREZ, where over 35,000 people have been killed in the drug violence. It is also a suspicion to some that Holder and Obama knew of the gun-running and allowed it to continue. It's when two border patrol agents were ambushed and killed, that the gun-running issue came up since the agents were killed with those very weapons!

  • Steve Chavez

    OTHER NEWS FROM NEW MEXICO that you will not hear about! Three weeks ago, a Mexican drug gang was suspected by the Albuquerque Police Department that they were selling up to $300,000 worth of HEROIN EVERYDAY! Two Illegals were caught in Santa Fe and another two in nearby Espanol, for selling HEROIN. Espanola, and the surrounding small towns including Chimayo, the famous site of an old church, have been dealing with teens addicted to heroin!

    A month ago in Santa Fe, an illegal Guatemalan was invited to live with another Guatemalan family and he RAPED their seven year old daughter countless times. He fled!

    In Santa Fe, an illegal Mexican was stopped for a traffic violation and he had three warrants already for failure to appear. He was given a driver's license due to a policy by BILL RICHARDSON. He then used the license to get two jobs at Lowe's and K-Mart JOBS AMERICANS WILL DO!!!

    A Notary Public was notarizing false documents like birth certificates for illegals who then used them to get New Mexico driver's licences. ILLEGALS FROM ALL OVER THE WORLD are coming here to get that License. The current Governor, Susana Martinez, a Republican, was unsuccessful in the past Legislature to end this law!

    This is the tip of the iceberg!

  • tullamore

    Us Code Title 18 Aliens & Nationality section 1324(c) "All officers charged with enforcing criminal law SHALL have authority to arrest any individual for violation of any section of this law." The Feds aren't even in this, all cops are.

    • tagalog

      Could that be called an unfunded mandate?

      • Rifleman

        Doesn't, "shall have the authority" leave it at state and local discretion, rather than mandate?

  • richard ahern

    The general misconception is that any statue passed by legislators bearing the appearance of the law constitutes the law of the land. The US Constitution is the Supreme aw of the Land, and any statute, to be valid, must be in agreement. It is impossible for both the Constituion and a law vilotating it to be valid; one must prevail.


  • WilliamJamesWard

    I am satisfied that the decision by the Supreme Court is a step in the right
    direction. The problems with legal interpretation and thought go to the
    overwhelming residue of the "60s generation to as I believe Timothy Leary
    was pushing, "be here now", everything is now and the party is on. However
    that short changes the responsibility to the future and what it holds for our
    children and grandchildren. Self centerdness is like what Dostoyevsky said
    about self consciousness "it is a thorough going disease". Many officials
    are looking out for number 1 and can not see past what is in it for them,
    what can they get out of it. We once were able to allow workers into
    America with legal programs, they need to be to the extent useful revived,
    and the sordid business of worker exploitation ended along with
    illegal conduct. …………………………………………………………………William

  • BS77

    Does this mean mass deportations will finally begin?

    • Fred Dawes

      YES BUT THE DEPORTED Will be X AMERICANS After all the government of this USA Appears to hate us

    • Rifleman

      No need. Border crashers will self deport if they can't work, and fewer will crash the border. Hussein is deporting record numbers of illegals, but as he knows, the number he deports ain't a drop in the bucket to how many are crashing the border, and a drop in the pool to how many are here. Self deportation works. It's noticeable here in Georgia since we passed HB87 ( I don't feel sorry for all the short handed businesses I'm seeing). The states our illegals run to will learn fast.

      It would be an occasion for popcorn if ICE showed up at one of those border crasher protests with about 20 cattle trucks and started checking ID, wouldn't it?

  • Rifleman

    The moonbats that don't want federal immigration law enforced are out squealing today. Poor babies, I can't help but laugh at 'em.

  • Steve

    This war has been lost and the Republic has been successfully invaded and occupied. See California for the future of the Republic. My advice: learn Spanglish and change youir last name to Chavez or some other Mexican name. BTW, the organized hate in the California schools by the Mexican Nationalists against Blacks and Whites is truly extraordinary. In America, whites are like the Jews in 1930's Germany, with many laws disadvantaging them.

  • curmudgeon

    arizona's pitifully weak law is a pale substitute for what is needed. we need the states to all poke their finger in the traitorous federal government's eye and start fining any individual or business that hires illegals, heavily fine any government worker what is in any way involved with paying welfare or any other government largess to illegals, ruinously fine any individual or business that rents to, shelters or aids illegals, and total confiscation of all the assets of any community that treasonously decides to aid and abet the tide of illegal invasion that besets our country. a few months of this kind of enforcement, and we could rightly conclude that any spanish speaking azzwhole in our country is a criminal, do a little surveilance, and convict the invading scum of the crimes they are committing, and deal with them properly. but no. we wish to commit national suicide instead.

    • CHARLEY60

      Why don't we start dealing with the problem and stop wasting time with the symptom? Why do they come here to start with? The corporations , many of the them American, are using them as slave labor in Mexico. Mexican min. wage is $7.75 per "day".(2011) GM pays it's workers $8.00 a day to make the cars and trucks sent into the US duty free. Our min wage is a god send to them. Use our billions we are giving to Mexico as leverage to make them raise worker standards in there country, instead if lining the pockets of there rich even more. Tell GM and the other Mexican slave owners from America, to pay there help there at least our min wage or we are going to slap a like amt. on there imports. They still sell ther products here at the high level and put the added profits in the pockets of the company Brass.

  • Andres de Alamaya

    When you call government offices, such as Medicare or Social Security, you get a recording that instructs you to click 1 for English and 2 for Spanish. This is defacto bilingualism and an admission of defeat. For starters, we need a law that makes English the only official language of America. We've had a series of administrations wearing blinders, each worse than the previous, peaking with the present disaster in the WH.


    Republicans as well as Democrats have embraced a policy of open borders. President Bush sought to pass an amnesty bill he falsely sought to convince people was not amnesty. McCain, the Republican moron who gave the election to O'Bama also supported a version of the Dream Act which would not only would have granted blanket amnesty (after a fine and a very soft slap on the wrist) but would have opened the flood gates to chain immigration.

    There are now an estimated 50 million Ilegals in the Country. Two million, in the U.S on visas, remained and "disappeared" on the expiration of their visas. I recall that 19 Saudi Muslims, the ones who made their presence known on 911 were also present on expired visas. Naturally I wonder why our country is permitting this to happen.

    The illusion of course, carefully calculated by government and media is that there are fundamental differences in principle between the Republican and Democrat parties. In fact, however, there is only one party and one constituency, The Socialist Welfare State. Some might bridle at my description of the U.S. as socialist or quibble over the strict definition of socialism. But I think Hitler had it right when he said of the National Socialist State (NAZI) that he didn't care whether the citizen retained ownership of property so long as he owned the citizen and therefore his property.

    Our government has abandoned and betrayed its citizens. The Constitution is a relic. Democracy and constitutional government are a tragic farce.

  • Brittanicus

    Today, the people who are coming here illegally are economic aliens; with past and today’s governments ignoring the damaging outcome. Not only are these new sweeping economical aliens here, with their hands out, but they are stealing money through giant loopholes in the tax refund system. As an addition more than $40 billion dollars is transferred to foreign banks every year. It scares me where either the Liberal-Democrats or the Republicans are taking us? I cannot even afford to send my autistic son to college, but the children of illegal aliens are getting in State tuition, in many academic institutions. My now deceased Independent grandmother couldn't even have her dentures repaired some years back in California, but the children of illegal aliens get free education, free health care, free breakfast and lunch at; all the family has more monetary privileges than citizens, especially if you conceive a child will squatting here.

    Of those illegal immigrants who pay taxes using the ITIN, to feel more secure, collects most of it back in refunds. This country is deterioration fast, because of spending on people who have no right to even be here. For me and millions of patriotic Americans, no matter your race or religion the TEA PARTY is our only hope? Illegal immigration has become a major impediment in our social entitlement system, so we must fight this tumor that is eating away at common sense. It’s my hope that Michelle Bachmann steps into ring, realizing she is going to be attacked on all fronts by our shadow government, the George Soros's and the fanatics who wants world government and open borders.


    Attn: The Arizona Senate has defied the majority of the American people, THE TEA PARTY and stripped the 14th Amendment, instant citizenship law from moving towards the Supreme Court. By deliberately not addressing this gaping loophole, Congress in effect rewards law-breakers and punishes those who have chosen to follow the rules and immigrate legally. We expect it from the leftist and the democrats, but all will be intensely remembered in 2012, or whenever they come up for re-election. This is a hundred billion dollar Ponzi scheme, even bigger than Bernard Madoff could ever imagine.


    Estimates are around 300.000 babies annually are intentionally born to illegal aliens, so they hope not to get deported. Taxpayers need to yell at their incompetence and frightening aspect of reneging on the instant citizenship going to the justices.


    This is the exact tumult that began 1776 War of Independence? "TAXATION WITHOUT REPRESENTATION?” THIS IS YOUR MONEY THEY ARE SPENDING.

  • Brittanicus

    Here are some points that must be considered, with the scourge of illegal immigration? We should amend the 1986 Immigration Control and Reform Bill, signed by the late President Reagan. So there is an expeditious visa authority to allow the highest concentrations of highly skilled workers. So Instead of our brain drain through American companies going overseas, we bring in these job seekers. Our biggest problem of this century is not stopping illegal immigration, as although we need top notch professional workers, we must do everything in our power to stop the stream of endless poverty. Not mediocre job seekers, from India and other low income countries from abroad, but the people who have amassed verifiable science degrees in engineering or computer technology. People who will not become a weighted down welfare recipient, or need public assistance to survive.

    The farm worker dilemma after the 1986 Simpson-Mazzoli bill was rampant with fraud, which eventually cost US taxpayers 73 billion dollars amid an extra 4 million people subsisting on welfare entitlements. After these people staked their amnesty claim, they disappeared and turned up in the main job market. The main loser was the farmers and agriculture. I don't think the politicians in Washington have any idea, if another amnesty was made the law of the land? The 11 million we supposedly have in the illegal alien population, within months would materialize into 20 million plus? Can you imagine the mounting financial burden of legalizing these numbers? If it was 73 billion dollars, just after 1986, can anybody estimate the cost today?

    The Heritage Foundation, a non- profit, that it would cost tax payers through future years at least $ 2.6 TRILLION DOLLARS.

    In a nation going broke and proportionately owned by Communist China, wealthy Arabs and other rich investors? While our manufacturing industry closes down for good, locations like China are stealing our dollars through marketing cheap goods. American corporations in Mexico and other foreign countries, are using the CAFTA and NAFTA treaties, are also stealing our children’s futures. I cannot understand the mentality of these treaty negotiators; a blind monkey could do better? We owe more money to the rest of the world, than ever before; we are the debtor instead of the lender. It's difficult even to understand the magnitude of $14.5 Trillion dollars and yet this country is still importing poverty, because our borders remain porous?

    We need strong, unbending attitudes of people as Rep. Lou Bartlett whose previous legislation would have finally put an end to any facet of Amnesty, masquerading as Immigration Reform and current laws as E-Verify. This was the real substance of upheaval that opened the dam, on the rising consequences of illegal immigration and the expenditures of small towns like Hazleton, Pennsylvania. It was renounced by the administration who filed a lawsuit. However the Supreme Court has deliberated, informing the 3rd Circuit Court in PA of appeals to reconsider the case. As for the Supreme court rejecting a law that will stop illegal alien students from getting in-state tuition. I think a massive battle is building in America that is about to explode, with likely civil unrest .

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  • Fred Dawes

    thank you for pointing that out.

  • tagalog

    No doubt manufactured at the facility at Bhopal.