What is the impact of a recent United States Supreme Court decision on state and local authority to regulate immigration?
On May 26, 2011, the United States Supreme Court issued its decision in Chamber of Commerce of U.S. v. Whiting. 563 U. S. __, 2011 WL 2039365 (May 26, 2011). It is the Court’s first opinion in thirty-five years relating to state and local authority to regulate in the area of immigration. In short, the Court held that a 2007 Arizona law prohibiting the employment of unauthorized workers did not violate federal law. Through questions and answers, this post explains the Court’s holding and its potential impact on North Carolina laws.
Question 1. What is the Arizona law at issue in this case?
The Legal Arizona Workers Act of 2007 allows state courts to suspend or revoke the business licenses of Arizona employers that knowingly employ aliens not lawfully authorized to work. Ariz. Rev. Stat. Ann. §§23–211, 212, 212.01 (West Supp. 2010). The law also requires all employers in the state to use E-Verify to confirm that their employees are legally authorized to work. Ariz. Rev. Stat. Ann. § 23-214(A) (West Supp. 2010). When first enacted, the Arizona law contained no penalty for failure to comply with the E-Verify requirement. It was later amended to include penalties such as the loss of state-allocated economic development incentives, but because those penalties were not part of the statute when the lawsuit was initially filed, the U.S. Supreme Court did not address their interaction with federal law.
Question 2. What is the holding in the case?
The question presented was whether federal immigration law “preempts” or takes precedence over the Arizona law. Preemption is a doctrine rooted in the Supremacy clause of the U.S. Constitution. It has come to mean that a state or local law is preempted and invalidated when Congress has asserted its exclusive authority in an area or the law conflicts with federal legislation. See, e.g., De Canas v. Bica, 424 U.S. 351 (1976). For a more detailed discussion of preemption, see Sejal Zota, “Do State and Local Immigration Laws Violate Federal Law?” 74 Popular Government 22 (Spring/Summer 2009). In a 5-3 decision, the U.S. Supreme Court held that the Arizona law was not preempted by federal immigration law.
The Court held that the federal Immigration Reform and Control Act of 1986 (IRCA) specifically authorized the Arizona law. IRCA prohibits the knowing employment of unauthorized aliens and requires employers to take certain steps to verify an employee’s eligibility for employment. Pub. L. No. 99-603, 100 Stat. 3359 (1986) (employer sanctions provisions codified at 8 U.S.C. § 1324a to 1324c ). An “unauthorized alien” is defined as an alien who is not admitted for permanent residence or not otherwise authorized under federal law to work in the United States. 8 U. S. C. §1324a(h)(3) (2010). IRCA also guards against employment discrimination on the basis of citizenship or national origin. 8 U. S. C. §1324b(a) (2010). Employers that violate provisions of IRCA may be subjected to civil and criminal penalties.
IRCA also restricts the ability of States and localities to regulate the employment of unauthorized workers. The federal law expressly preempts “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) (2010). Under that provision, state laws that, for example, impose fines on the employers of unauthorized workers are expressly preempted and thus impermissible.
Until the Court’s decision in Whiting, it was unclear what laws, if any, were covered by the “other than through licensing and similar laws” exception. The Court concluded that while IRCA prohibits States from imposing “civil or criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” The court interpreted the term “licensing laws” broadly to cover laws—such as Arizona’s—that suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The court found that the Arizona law was therefore expressly authorized by IRCA.
Second, the Court found that the Arizona law did not otherwise conflict with IRCA or interfere with Congressional statutory intent. A state law may also be preempted by federal law if it is an obstacle to the accomplishment and the execution of the full purposes and objectives of Congress in enacting the federal legislation (referred to as implied preemption). See, e.g., Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The U.S. Commerce of Chamber argued that, by imposing additional sanctions on employers who hire authorized aliens while not penalizing those who discriminate, Arizona’s law had disrupted Congress’s carefully balanced objectives of deterring unauthorized alien employment without overburdening employers and increasing discrimination against legal workers who look or sound foreign. The court found no conflict or interference because states are expressly allowed to supplement IRCA’s penalties through licensing laws, and because Arizona’s “law closely tracks IRCA’s provisions in all material respects.” Whiting, 563 U. S. ____, 2011 WL 2039365, at *12. In describing how the Arizona law is consistent with IRCA, the Court stressed that the Arizona law “uses the Federal Government’s own definition of “unauthorized alien,” it relies solely on the Federal Government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the Federal Government’s own system for checking employee status.” Id.
Third, the Court ruled that Arizona’s requirement that all employers participate in E-Verify was not preempted by federal law. E-Verify is a web-based pilot program that allows participating employers to verify the employment eligibility of their new employees electronically. It is structured as a voluntary program operated by the U.S. Department of Homeland Security in partnership with the Social Security Administration. The Department of Homeland Security encourages the use of E-Verify, but is prohibited by federal law from requiring employers to use it. Pub. L. No. 104-208, § 402(a), 110 Stat. 3009, 3656 (1996) (“the Attorney General may not require any person or other entity to participate in [E-Verify].”). The Court concluded that the federal law, however, did not limit state action—there was no indication that Congress intended to prevent the states from requiring participation in E-Verify. The Court further found no conflict between Arizona’s E-Verify requirement and federal law, as the only consequence of not using E-Verify is the same under both laws—an employer forfeits the rebuttable presumption that he did not knowingly employ an unauthorized alien.
Question 3. How does Chamber of Commerce of U.S. v. Whiting impact proposed laws in North Carolina that penalize the employment of unauthorized workers?
Bills similar to the Arizona law are pending in the North Carolina state legislature. Under Whiting, a North Carolina law regulating the employment of unauthorized aliens through criminal sanctions, fines, or other non-licensing sanctions would be expressly preempted by federal law and thus impermissible. State or local laws that prohibit the employment of unauthorized aliens through licensing provisions, however, are expressly authorized by IRCA. Thus, if North Carolina enacted such a law, it would be valid and should withstand legal challenge—particularly if, like the Arizona law, it adopted federal immigration definitions, relied on the federal government’s verification and determination of immigration status and work authorization, and was consistent with the material provisions of IRCA.
Question 4: How does Chamber of Commerce of U.S. v. Whiting impact proposed E-Verify laws in North Carolina?
The North Carolina General Statutes require all state agencies, departments, institutions, universities, and local education agencies to use E-Verify to check the work authorization for new employees. G.S. 126-7.1. North Carolina local governments, government contractors, and private employers are currently not required to use E-Verify, though they may voluntarily elect to do so. Pending bills in the North Carolina legislature would require some or all of these actors to participate in the program. Under Whiting, such E-Verify laws are not preempted by federal law and should withstand legal challenge.
It is worth noting that in Arizona, employers faced no sanction for failure to comply with the E-Verify requirement. The Court noted this lack of penalty as support for finding no conflict between the state E-Verify requirement and federal law. It is unclear from the opinion whether this was a significant consideration for the Court and whether imposing a sanction, such as a fine, for failure to use E-Verify would create any conflict with the federal law.
Question 5. Does Chamber of Commerce of U.S. v. Whiting provide states and localities with authority to enact other types of laws related to immigration?
Chamber of Commerce of U.S. v. Whiting likely does not give states and local governments broad authority to adopt other types of laws related to immigration. The Court’s holding was based largely on a finding that federal immigration law expressly authorized the Arizona legislation. Other types of immigration-related laws that are expressly authorized by and consistent with federal law are therefore permissible. The Court’s reasoning was based also on a framing of the Arizona law as regulation of “in-state businesses through licensing laws,” which has never been considered “an area of dominant federal concern,” the Court explained. Whiting, 563 U. S. ____, 2011 WL 2039365, at *13. States have historically possessed power to regulate employers within their borders, but not immigration itself, which is the exclusive domain of the federal government. For example, prior to the passage of IRCA in 1986, the U.S. Supreme Court found that a California state law assessing civil fines for the employment of unauthorized aliens was not preempted by federal immigration law. De Canas v. Bica, 424 U.S. 351, 354, 356 (1976) (recognizing that the “[p]ower to regulate immigration is unquestionably . . . a federal power,” but noting that the “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.”). Whiting, therefore, does not provide states and local governments with broad authority to enact immigration-related laws that are not expressly authorized by federal law or outside of the area of employment.