The Future of Arizona's Illegal Immigration Law

The Supreme Court hands down a great victory for the rule of law.

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.

Chief Justice Roberts wrote that Arizona was simply implementing the sanctions that Congress expressly allowed the states to pursue through licensing laws. He also emphasized that Arizona’s law closely tracks the federal immigration law's provisions in all material respects. For example, Chief Justice Roberts observed that Arizona's law adopts the federal definition of who qualifies as an “unauthorized alien.” And it requires Arizona employers to use the federal government’s own system for checking employee status.

This same reasoning should apply to the core provisions of SB 1070 that have been struck down by lower courts. For example, when state law enforcement officers have reasonable suspicion that an individual is in the country illegally after they have detained the individual for entirely unrelated reasons (such as going through a stop sign), it seems illogical that the verification and relay of that information to the federal government would be against Congress's intent. The federal government at all times maintains its authority to determine how to proceed once an illegal alien is brought to its attention by Arizona law enforcement officials.

Chief Justice Roberts' opinion dismissed other contentions offered by the challengers to Arizona's licensing law, which the challengers to SB 1070 no doubt had hoped would have been more successful. He rejected the argument that Arizona's licensing law is preempted because it upsets the balance that Congress sought to strike:

The balancing process that culminated in IRCA resulted in a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.

And the Chief Justice dismissed out of hand the presumption that employers would err on the side of discrimination and turn away prospective employees who look or sound foreign, in order to be sure that they comply with the Arizona law and maintain their licenses:

Federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate... The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no reason to suppose that Arizona employers will choose not to do so.

Finally, the Supreme Court opinion upholding the constitutionality of Arizona's licensing law invoked the allocation of federal and state responsibilities under our system of federalism. Congress, Chief Justice Roberts wrote, did not intend "that the Federal Government can impose large sanctions, and the States only small ones."

The pro-amnesty, open border groups who oppose all efforts to reverse the tide of illegal immigrants into our country may try to argue that the Supreme Court's decision was narrowly focused, confined only to Arizona's business license law. However, if Chief Justice Roberts wanted to write such an opinion, he could have limited himself to deciding the case based solely on the unique preemption carve-out language applicable to state licensing laws. But instead he went on to deal with more fundamental preemption and discrimination arguments that challengers of Arizona's anti-illegal immigration laws, including SB 1070, have raised.

SB 1070 complements federal law enforcement. It does not purport to displace federal immigration law, create new definitions of illegal aliens or regulate immigration. SB 1070 is also facially non-discriminatory. The Supreme Court may well come to the same conclusion that it did in the state licensing case - there is nothing in the statute that pre-ordains racial profiling or other forms of discrimination.

In sum, the Court's reasoning in Chamber of Commerce of the United States of America v. Whiting bodes well for those of us who believe that SB 1070 is constitutional and an appropriate response to the illegal immigration problem besetting the border states.