The US Supreme Court heard arguments on the legality of the Arizona law requires state employers to check the immigration status of job applicants. The Arizona law permits the state to revoke the business license of companies who violate the law and hire undocumented workers.
The case, Chamber of Commerce v. Whiting, involves the Legal Arizona Workers Act (LAWA), and the Supreme Court has been asked to determine if the federal Immigration Reform and Control Act (IRAC) preempts (prevents) Arizona from creating laws that interfere with the federal immigration laws.
IRAC prohibits the states from enacting legislation that would interfere with the federal immigration laws. A state could not fine an employer for hiring undocumented workers. IRAC, however, permits states to regulate employers by use of "licensing and similar laws." Arizona made the penalty for violations of the LAWA the revocation of their license.
Arizona's legislature clearly hoped when they enacted LAWA that it would escape being preempted by IRAC by use of the revocation of licenses. So far, they have been successful, wining the approval of a panel of the Ninth Circuit Court of Appeals. And from arguments in front of the Supreme Court, it appears they have a chance of receiving the approval of that court.
A broad coalition of organizations oppose the law, ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce, the named plaintiff in the case. The ACLU and other traditionally liberal groups oppose the law because it could lead to discrimination against workers of color. They reason employers, worried that employing workers of color or with foreign accents could bring accusations of hiring undocumented workers and the potential sanction of losing its license, may avoid the risk and simply not hire anyone who "looks suspicious."
The Chamber of Commerce opposes this legislation as an unfair burden on business, forcing them to become de facto enforcers of the immigration laws. For many businesses, the loss of a license for even a few days could be catastrophic. A restaurant losing its license to serve alcohol could drive them out of business.
The Problem with E-Verify
The LAWA requires employers to use the federal E-Verify, a pilot program created by IRAC, to verify the eligibility of workers for employment. There are problems with E-Verify, and it was designed as a pilot program because of these problems. The program is voluntary for employers, as Congress understood how difficult the creation and maintenance of accurate employment edibility records would be, and they wanted it to be flexible enough adapt to changing conditions.
When a court is faced with a statute (a law) to interpret, the core of the analysis is focused on the language of the statute. When there is ambiguity, when the language is not clear or open to more than one interpretation, a court is to look to the intent of the legislature. What did Congress intend when it wrote the statute?
The question in this case is what Congress intended when it wrote that IRAC preempted "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." 8 U.S.C. § 1324a(h)(2). The question is the focused on the parenthetical "other than through licensing and similar laws."
Most of the time a court struggles with this, as they may have little idea what Congress or any other legislature "intended" when it wrote the legislation. Often there is little commentary, and more often than not, there is nothing in any committee hearing testimony, floor debate or remarks that addresses the questionable language.
And frequently, the law may be old enough that no one who participated in the writing of the law remembers what was intended or may even remain alive.
Unusual Brief on Congressional Intent
One of the unusual briefs filed with this case in the Supreme Court was the one filed by Members of Congress who worked on IRAC when it was being enacted. In fact, Representative Mazzoli was co-author of the legislation and it is known as the Simpson-Mazzoli Act. On the brief, Rep. Mazzoli is joined by Senator Arlen Spector and Rep. Howard Berman.
In their brief, they point to language from a congressional report which they believe makes it clear that Congress did not intend to permit the states to create laws like LAWA.
They note the exceptions are:
They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to re-issue a license to any person who has been found to have violated the sanctions provisions in this legislation.
In other words, the employer must be found guilty under the Federal Act for the state to then revoke the license. The LAWA allows Arizona to revoke the license of a business solely for violating the terms of the Arizona act, and does not require any action on the part of the federal immigration authorities.
Oral Argument in the Supreme Court
The Supreme Court's oral argument gave the impression the court may allow the Arizona law to stand. During the argument, the justices appeared split, and if the case receives a 4-4 vote, the Ninth Circuit's decision would stand.
Even if the Supreme Court rules 5-3 and gives Arizona a clear "win," there are other cases pending on Arizona's other, more recent, immigration law. The challenges will leave the status of Arizona's attempt to regulate immigration matters unsettled.
Arizona state senator Russell Pearce, who authored the Arizona law and other pieces of legislation impacting workers. In 2009, he co-authored S.B. 1334, a bill that would have amended the Workers Compensation law in Arizona to remove coverage for undocumented workers.
This was done to prevent outcomes like the District of Columbia court, which ruled in favor of an undocumented worker, who was permitted to received workers compensation benefits. The DC court said there was nothing in the workers compensation law regarding the immigration status of a worker. There are those in Arizona, like Senator Pearce, who want to limit the right of injured workers to obtain workers' compensation benefits.
Omar C. Jadwat, staff attorney with the ACLU Immigrants' Rights Project commented on the Legal Arizona Workers Act as arguments were presented in the Supreme Court: "Arizona's employer sanctions law is an unwise, unfair and unconstitutional attempt to unilaterally override federal law that creates an unacceptable risk of discrimination against lawful workers. The Court should firmly reject the Arizona law."
Not the Last Word
Legal challenges to the "other" Arizona law ("Support Our Law Enforcement and Safe Neighborhoods Act" or SB 1070, also introduced by Senator Pearce) dealing with immigration is winding its way toward the Supreme Court, so the justices will have yet another case to better define the interaction of federal immigration law and state legislative action.