Supreme Court: AZ Can Require Employers to Verify Citizenship Status of Workers

May 26, 2011 - 2:25 PM

Citizens of Hazleton, Pa., Support Anti-Illegal Immigration Ordinances

In this June 3, 2007, file photo, a crowd rallies in front of City Hall in Hazleton, Pa., in support of Mayor Lou Barletta and two ordinances aimed at cracking down on illegal aliens. (AP Photo)

(CNSNews.com) – In an early test of state immigration reform laws, the Supreme Court ruled on the side of enforcement regarding an Arizona immigration law that allows penalties up to revocation of business licenses for employers that knowingly hire illegal aliens.

The Arizona law in question in this case required employers to use E-Verify, an electronic federal system that is currently voluntary that allows employers to determine the legal status of job applicants and employees. The court ruled 5-3, with Justice Elena Kagan not participating, to reject the U.S. Chamber of Commerce’s argument that the Arizona law pre-empted federal control over immigration policy.

This was the first challenge to a state immigration law considered by the high court. The Obama administration opposed the law, but was not directly involved in this case. The Obama Justice Department sued Arizona over another law enacted last year - Senate Bill 1070 - that allowed local law enforcement to enforce federal immigration laws.

This ruling bodes well for other enforcement laws with regard to future rulings, said Bob Dane, spokesman for the pro-enforcement Federation of Americans for Immigration Reform.

“This makes clear that federal preemption argument does not preclude meaningful legislation at the state level,” Dane told CNSNews.com. “The Supreme Court said there is no conflict. This is a major smack down to special interests in using the preemption argument.”

“In this case, there was no conflict, it mirrored federal law. We think the same applies to 1070,” Dane added. “It’s a different law and a different decision. But this establishes a legal framework that can be factored into the argument over 1070.”

The Legal Arizona Workers Act of 2007 says the licenses of state employers that knowingly or intentionally employ illegal aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.

Writing for the majority, Chief Justice John Roberts said the Arizona law is consistent with the federal Immigration Reform and Control Act that also 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.”

“Because we conclude that the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted,” Roberts wrote.

IRCA does restrict the ability of states to combat employing illegal aliens, but this law does not run counter to that, Roberts continued.

“IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others,” Roberts wrote. “We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”

At its broadest level, the Chamber’s argument is that Congress ‘intended the federal system to be exclusive,’ and that any state system therefore necessarily conflicts with federal law,” Roberts continued.

“But Arizona’s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws. Given that Congress specifically preserved such authority for the states, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority,” he added.

But the ruling does not give states “a blank check to pass any and every immigration law,” said Robin Conrad, executive vice president of the National Chamber Litigation Center.

“Immigration regulation continues to be predominantly a federal concern. State and local laws that do not carefully and assiduously track federal law, or that merely masquerade as 'licensing' laws, would still be preempted,” Conrad said in a statement.

“This ruling does not change the reality that businesses from Main Street to Wall Street are overwhelmed by a cacophony of conflicting state and local immigration legislation. The growing patchwork of state and local immigration laws is a serious obstacle to doing business across state lines,” he added.

Associate Justice Stephen Breyer in the dissenting opinion wrote that allowing the state law to stand imposes the “business death penalty” on employers, who will overreact by discriminating against certain applicants.

“Congress did not intend its ‘licensing’ language to create so broad an exemption, for doing so would permit states to eviscerate the federal act’s preemption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment,” Breyer wrote.

He later added, “The state statute seriously threatens the federal Act’s anti-discriminatory objectives by radically skewing the relevant penalties.”