CHAMBER OF COMMERCE V. WHITING
THE US SUPREME COURT HAS UPHELD THE LEGAL ARIZONA WORKERS ACT of 2007,
which says that if an Arizona employer knowingly or intentionally
employs an unauthorized alien, Arizona courts may suspend or revoke
licenses needed for doing business in Arizona, and also impose fines
and prison time. The Chamber Of Commerce, and other
organizations, sued to block this law.
The Court looked at the law as originally passed, but there have been
changes since then, and they may eventually reach the Court. In
any event, the Court's opinion may give clues on how it'll rule on
SB1070, Arizona's new law aimed at illegal immigration, for which
Arizona is being sued in two separate federal cases.
Here's a digest of the majority opinion in Whiting, plus both
dissents. What follows is a drastic condensation, rewrite, and
rearrangement, plus [COMMENTS] by this writer. The full opinion,
with piquant back-and-forth between Justices, is at
I. The laws involved
I.A. The federal Immigration Reform and Control Act
In 1996, Congress passed the Immigration Reform and Control Act (IRCA),
which makes it unlawful for anyone, knowing an alien is unauthorized,
to hire him, recruit him for anyone for employment, or refer him to
anyone. IRCA also forbids employment discrimination because of
national origin. Violations can lead to fines and prison
time. IRCA expressly preempts (overrides) any state or local law
that punishes employers for such behavior, but IRCA also has a "savings
clause" which lets states punish employers via licensing laws.
IRCA requires an employer to swear on "Form I-9" that he has reviewed
certain documents and verified that an employee is not an unauthorized
alien. Form I-9, and any information in or attached to it, is
only for federal, not state, use. Good-faith compliance with Form
I-9 provides an "affirmative defense:" an employer can argue "Yes I
hired an illegal alien, but I followed your rules, so I can't be found
In 1996, Congress created the "E-Verify" program to supplement the Form
I-9 process. An employer submits a request via internet, and
receives either a confirmation of an employee's authorization to work,
or a tentative nonconfirmation. A "nonconfirmed" employee may
challenge. An employer who uses E-Verify and gets a confirmation,
then is sued, can use a "Yes, but" defense just as with Form I-9.
As a rule, the federal government can't order a non-federal employer to
use E-Verify, but nothing in IRCA says a state can't make E-Verify
I.B. The Legal Arizona Workers (LAW) Act of 2007
The LAW Act says that if an Arizona employer knowingly or intentionally
employs an unauthorized alien, a state court may suspend, maybe even
revoke, licenses needed for doing business in Arizona. That's
much tougher than IRCA. The Arizona law defines "license" very
broadly, as "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,"
including articles of incorporation, certificates of partnership, and
authorizations to foreign companies to do business in Arizona, etc.
The LAW Act also requires employers to use E-Verify.
If anyone files a complaint alleging that an employer has hired an
unauthorized alien, the attorney general or county attorney must obtain
a federal determination of whether the worker is authorized. If
the determination is negative, a case against the employer is filed in
state court. In determining whether an employee is an
unauthorized alien, the court shall consider only the federal
Arizona's law, like federal law, allows "Yes, but" defenses.
For a first "knowing" violation, a court may, among other penalties,
suspend all licenses of an employer for up to 10 business days; a
second knowing violation requires the revocation of all licenses of the
employer for the location where the unauthorized alien worked.
For a first "intentional" violation, a court must, among other
penalties, suspend all of an employer's licenses for at least 10 days;
a second intentional violation at the same address as the first, and
while the employer is on probation for a violation at that location,
requires revocation of all business licenses of the employer, without
regard to their location.
II. The majority's rejection of the Chamber's arguments
II.A. About what the laws explicitly say
The Chamber argues that IRCA expressly preempts Arizona's law.
The majority notes that IRCA lets states impose sanctions through
licensing and similar laws. Arizona's definition of "license"
fits the federal definition, or at least is similar. If Congress
intended IRCA's exemption to be narrow, Congress would have made IRCA
say that that clearly.
The Chamber argues that Arizona's law is not a licensing law, because
it suspends or revokes licenses, instead of granting them. The
majority rejects this distinction.
The Chamber argues that Congress meant to let states issue sanctions
only after a federal adjudication. The majority rejects this
The Chamber argues that Congress wanted uniformity in immigration law
enforcement. The majority notes that Congress expressly let
States impose their own sanctions, which implies some departure from
homogeneity; and besides, the Arizona law is so much like federal law
that there will be uniformity in enforcement. [COMMENT, the
opinion does not address the lack of uniformity caused by "sanctuary
cities" and so on.]
The Chamber argues that IRCA's savings clause -- the loophole -- was
intended only to preserve a few specific licensing programs. The
majority says no such limit is discernible in IRCA.
The Chamber argues about IRCA's legislative history, but the majority
notes that the text of a law, not the process that led to it, is the
best authority about what a law means.
II.B. About what the laws merely imply
The Chamber argues that IRCA impliedly preempts Arizona law whenever
they conflict. The majority disagrees, and finds that, in any
event, there's no important conflict.
The majority notes that Arizona's law lets an employer challenge the
federal determination -- but Arizona's arguments on appeal explain that
this will only let an employer try to show "lawful" if the federal
determination was "unlawful." Applied this way, the law does not
conflict with federal law. In any event, if the federal
determination does not confirm that an employee is an unauthorized
alien, then the State cannot prove that the employer hired an
unauthorized alien. [COMMENT: The majority is not ruling on
the law as written, but is accepting Arizona's promises that the law
won't be enforced as written.]
The majority notes that the Chamber did not make any argument based on
Arizona's prohibiting "intentionally" employing an unauthorized alien,
language which IRCA does not have. [COMMENT, the majority may
encourage the plaintiffs in the SB 1070 case to dwell on small
differences in legal wording.]
The Chamber argues that Arizona's law conflicts with federal law by
inviting use of Form I-9 in state court. The majority says an
employer will not need the Form I-9 to assert a "Yes, but" defense, and
can establish good faith by using other kinds of evidence, such as
testimony from office staff.
The Chamber argues that Arizona's law upsets IRCA's balance between
deterring unauthorized employment, avoiding burdens on employers,
protecting employee privacy, and guarding against discrimination.
The majority answers that the cases cited by the Chamber are not
similar to this case, that IRCA does not say that state sanctions must
be smaller than federal, and that Arizona's sanctions are typical in a
The Chamber argues that employers will tend to discriminate, rather
than risk the "business death penalty" by hiring unauthorized
workers. The majority says that's a false opposition, because
license termination isn't available merely for hiring unauthorized
workers, only for far worse violations.
II.C About E-Verify
The Chamber argues that IRCA impliedly prohibits Arizona from requiring
employers to use E-Verify. The majority notes the absence of any
The Chamber argues that Arizona's mandating E-Verify impedes Congress's
intent to develop a reliable and non-burdensome alternative to Form
I-9. The majority finds that Arizona's mandating E-Verify doesn't
obstruct any federal aims, and that the federal government wants to
encourage the use of E-Verify.
The Chamber argues that if every State followed Arizona's lead, the
drain on federal resources would overwhelm E-Verify. The majority
finds that government reports say otherwise.
The Chamber says E-Verify is not reliable. The majority cites
government findings about E-Verify's accuracy and user satisfaction,
and says E-Verify is the best tool available. In particular, the
majority attacks Justice Breyer's dissent. The majority says that
if E-Verify determined that two employees were not authorized, but one
of those determinations was later found incorrect, Breyer would claim
an error rate of 50%. [COMMENT, the majority is wrong.
Breyer is arguing only about the high error rate for findings of "not
authorized." Breyer is not applying that error rate to findings
of "authorized." The majority is misstating his argument.]
III. The majority's conclusion: If Arizona's law has
impermissible conflicts with federal law, then no state law can
possibly implement licensing sanctions, despite IRCA's savings
clause. Arizona's law falls within IRCA's savings clause, and
does not conflict with federal immigration law.
JUSTICE BREYER's dissent, giving his point of view
I. The purposes of IRCA
IRCA balances three goals: to discourage employers from hiring
aliens not authorized to work, prevent harassment of innocent
employers, and prevent employers from discriminating against job
applicants who look or sound foreign. [COMMENT: The
possibility of encouraging discrimination is far more prominent in the
dissents than in the majority opinion.]
Arizona's law is ham-handed: it applies to almost all business
licenses; its potential penalties are much heavier than IRCA's, and
make it much safer for an employer to discriminate than to hire
unauthorized workers; and it encourages prosecution by state officials
who are not familiar with federal immigration law.
Arizona's law traps employers. Arizona's law says that use of an
I-9 form allows a "Yes, but" defense -- but federal law says that an
I-9 form can't be used for anything but enforcing federal law.
The majority says I-9 forms are not necessary for proving a "Yes, but"
defense, but Breyer argues that surely they are the most effective way.
Arizona's law says both that a state court shall consider only the
federal determination, and that the "Yes, but" defense is
available. Based on that, an employer is bound by a federal
determination, but the state can rebut a federal determination of
"lawful." Arizona's filings disagree, but state courts don't have
to do what the filings say. This ambiguity will make employers,
despite I-9 and E-Verify, hesitant to hire people who may turn out to
lack the right to work in the US.
And that is the basic point. Arizona's law will influence
employers against hiring unauthorized aliens -- without any
counterbalance against unlawful discrimination.
II. The Arizona law's definition of "license"
Arizona's law defines "license" far more broadly than IRCA
intends. Congress did not intend IRCA's savings clause to
undermine Congress' efforts to protect lawful workers from
discrimination, and protect lawful employers from prosecution.
Dictionary definitions of "licensing" may include virtually any
permission that a state chooses to call a "license," but context
ultimately determines the word's coverage, and tells us that IRCA's
"licensing" exception does not embrace Arizona's definition of that
term. IRCA's exemption should be limited to licenses that have a
significant relation to employment or hiring.
Congress has kept E-Verify voluntary for several renewals. It is
not up to Arizona or this Court to make E-Verify mandatory.
E-Verify's problems are not trivial. Nearly 1 in 5 times that
E-Verify returned a tentative "not authorized," it was wrong; and
people wrongly identified were likely to be foreign-born, by about 20
to 1. E-Verify's accuracy is even worse in states that require it
for any employers.
Arizona's law says that in considering if an employee is an
unauthorized alien, the state court shall consider only the federal
determination -- which is of a person's "citizenship or immigration
status," not of work authorization -- and when the federal
determination is negative, it is wrong almost 1 in 5 times.
E-Verify is getting more accurate, but problems remain, and it is up to
Congress, not Arizona or this Court, to determine when E-Verify is
ready for expansion.
Federal contractors are a special group of employers who enter
voluntarily into a special relation with the government. That
special group's participation in E-Verify shows little about the
effects of a state mandate for nearly every employer in the state to
participate, and we have not yet determined the intent of the mandate.
There is no reason to infer that because the Secretary may not make the program mandatory, States may.
JUSTICE SOTOMAYOR's dissent, giving her point of view
I. IRCA's intent about licenses
IRCA does not define "licensing," and laws that impose sanctions via
licensing sometimes let an agency make its own determination, but
sometimes require another agency to make a determination first.
IRCA does not say what Congress meant.
Before IRCA, some states passed laws prohibiting employment of
unauthorized aliens, but no state provided for licensing-related
sanctions. Faced with a patchwork of state laws, Congress
centralized, in the federal government, prohibition on the knowing
employment of unauthorized aliens. [COMMENT, the federal
government is noted for not enforcing immigration law. Sotomayor
does not say why federal law should receive deference if federal policy
is not to enforce federal law.]
Under IRCA, orders finding violations are reviewed by federal judges
experienced in immigration; the use of Form I-9 is limited to federal
proceedings; and IRCA does not let federal and state governments share
information for employment purposes (though IRCA does let states
ascertain the immigration status of aliens applying for programs like
Medicaid and food stamps -- suggesting that IRCA's failure to provide
such a mechanism for employment was intentional.) If Congress
meant state courts to decide whether a person had employed an
unauthorized alien, why would Congress prohibit a state court from
using Form I-9? [COMMENT: Judges always treat legislative
bodies as fonts of wisdom and virtue, who deliberate is if they dwelt
in marble halls -- a fiction that's wearing especially thin at present.]
Federal law requires the federal government to answer state queries
about "citizenship or immigration status," but not work authorization
status, which is a different thing. And that law, passed in 1996,
implies nothing about Congress's intent a decade later, when it passed
IRCA's saving clause.
Even if Arizona prosecutors obtain a federal determination of
immigration status, they will have to determine what that response
implies for an alien's work authorization status, so they must often
interpret immigration law, which is often quite complex and
specialized. The result is going to be a mass of inconsistencies
with state law. Given Congress's express goal of uniform
enforcement of immigration laws, I cannot believe that Congress
intended fifty states, and countless localities, to implement a
patchwork of procedures.
II. Agreement with Justice Breyer's dissent, and more
As Justice Breyer said, federal law impliedly preempts the Arizona provision requiring Arizona employers to use E-Verify.
A state law that mandates something that's voluntary under federal law
does not necessarily impede the full purposes of Congress. But
Arizona's law mandates the use of a federally created and administered
resource, so this case implicates the federal interest in managing its
own resources. [COMMENT: Based on the federal budget, it's
speculative to hypothesize any federal interest in managing its own
The majority highlights the federal executive branch's statement that
E-Verify can accommodate increased use caused by the Arizona statute
and similar laws. But the executive branch's opinion is
irrelevant; what matters is the purpose of Congress, and Congress has
repeatedly kept E-Verify voluntary.