May 26, 2011
This morning, the Supreme Court announced its decision in Chamber of Commerce v. Whiting, a case challenging Arizona's immigration law. The law imposes strict sanctions -- the suspension or revocation of business licenses -- on employers who intentionally or knowingly hire unauthorized workers. It also requires Arizona businesses to use the federal government's electronic system for verifying work authorization, E-Verify.
A group of business and civl rights organizations challenged the law, claiming that it was preempted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court disagreed. Although IRCA does preempt many types of state laws that attempt to control illegal immigration, it includes an exception that allows states to pass and enforce licensing and similar laws. Because the Arizona law imposes its sanctions through the suspension and revocation of business licenses, it falls into this exception and can coexist with IRCA. The Court also noted that Arizona took pains to bring its sanctions scheme into harmony with IRCA by, for example, using the federal definition of "unauthorized alien" and deferring to the federal government's determination of an employee's authorization to work in the U.S.
The Court also upheld the requirement that Arizona employers use E-Verify to check on work authorization. Although the statute authorizing the E-Verify program prohibits the Secretary of Homeland Security from requiring any employer outside the federal government to use E-Verify (unless the employer has already violated the law), it doesn't impose any limits on state laws mandating use of E-Verify.
Several other states have passed laws similar to Arizona's, and others are likely to follow on the heels of the Court's opinion today.