The federal Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful “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) The law expressly bars the states from taking action against the employment of undocumented persons. The law’s preemption language prohibits “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 law also required employers to verify potential employees’ immigration status through E-Verify, a web-based federal database. f
In 2007, Arizona enacted the Legal Arizona Workers Act (LAWA). This law called for, among other immigration-related topics, the suspension or revocation of the business license of any employer that knowingly or intentionally hired an undocumented person. The passage of LAWA prompted the Chamber of Commerce of the United States and a number of civil rights organizations to file suit in federal court on grounds that LAWA was expressly and impliedly preempted by IRCA. The district court upheld the Arizona law, finding that LAWA was not preempted because Congress had included in the IRCA the clause (“other than through licensing and similar laws”). The Ninth Circuit Court of Appeals agreed, and the Supreme Court accepted the appeal of Chamber of Commerce (and other groups) in 2010.
The Chamber urged the Court to look to the legislative history of related federal legislation as a basis to conclude that the savings clause should be construed narrowly. To do otherwise, they contended, would lead to each state developing licensing schemes that could interfere with the uniform federal plan.
The Supreme Court, in a majority opinion by Chief Justice John Roberts, rejected this argument, choosing instead to focus on the text of LAWA. The Court noted that IRCA expressly preempts state restrictions on immigration except those relating to “licensing and similar laws.” The Court noted that the Arizona law’s definition of license “largely parrots the definition of ‘license’ that Congress codified in the Administrative Procedure Act.” The Court therefore held that the licensing provision of LAWA was not preempted by federal law.
Justice Stephen Breyer dissented, pointing out that the legislative history of IRCA made clear that the law resulted from a careful balancing of interests – including “to prevent employers from disfavoring job applicants who appear foreign.” Justice Breyer criticized Arizona’s broad definition of license (which included a wide variety of documents unrelated to employment relationships, such as articles of incorporation) because such a broad definition gave the Arizona law a far-wider reach than IRCA. This, combined with LAWA’s harsher penalties, resulted in a state statute that “seriously threatens the federal act’s anti-discriminatory objectives by radically skewing the relevant penalties.” In this way, he contended, LAWA amounted to an inappropriate undermining of federal law.
See also Arizona v. United States.
Marisa S. Cianciarulo, “The ‘Arizonification’ of Immigration Law: Implications of Chamber of Commerce v. Whiting for State and Local Immigration Legislation,” Harvard Latino Law Review 15 (2012) 85; Mary Fan, “Rebellious State Crimmigration Enforcement and the Foreign Affairs Power,” Washington University Law Review 89 (2012) 1269.