One Year Later: The Consequences of Chamber of Commerce v. Whiting

In the two years since Arizona Governor Jan Brewer signed into law SB 1070, the state’s far-reaching and controversial immigration bill, numerous states have produced copycat versions of the legislation. While many of these bills have stalled or failed, others have become law and later been challenged in court by the Department of Justice, immigrant rights groups, and representatives of the affected communities. The DOJ’s challenge to SB 1070, in Arizona v. United States, was the first of these cases to reach the Supreme Court, with oral arguments held in April and a decision expected in June.

Arizona may have been the inspiration for this spate of draconian state immigration laws, but it does not bear sole responsibility for the trend. Rather, the Supreme Court played a role in opening this ugly can of worms. In U.S. Chamber of Commerce v. Whiting, a decision issued one year ago this week, the Supreme Court’s conservative majority effectively endorsed the possibility that states could create their own immigration policies.


The story of Whiting begins in 2007, long before SB 1070 was on the horizon, when Governor Brewer signed the Legal Arizona Workers Act (LAWA) into law. LAWA, which allows Arizona to revoke the business licenses of employers that fail to verify the immigration status of each of their employees, was challenged in federal court by the Chamber of Commerce and immigrant rights groups. That unlikely team of plaintiffs argued that LAWA was preempted by federal immigration laws, and should therefore be blocked. Immigration is an area in which the federal government has long asserted close to exclusive jurisdiction, and rightly so; allowing states to create their own immigration laws or arbitrarily assume some of the roles assigned to federal officers would disrupt what traditionally has been a balanced and uniform approach to immigration.

When the Whiting case reached the Supreme Court, the conservative majority upheld LAWA, finding that it was not preempted by federal law since it pertained to licensing. The court relied on the “plain language” of the federal statutory provision on hiring undocumented immigrants, which expressly preempts state sanctions of employers except through “licensing or similar laws.”

Justice Breyer argued in his dissent that upholding the Arizona law would disrupt a careful balance between the penalties for hiring undocumented workers and the penalties for unlawful racial discrimination. In other words, Justice Breyer warned that this law would make racial discrimination a lesser evil than employing an undocumented immigrant in Arizona.

Whiting sent a powerful message to states like Arizona that wish to enforce their own harsh immigration laws. And there is no question that the laws are intended to be harsh. When debating Alabama’s parallel legislation, HR 56, legislators praised the bill by saying it “attacks every aspect of an illegal immigrant’s life” and hoping that the law would “make it difficult for them to live here so they will deport themselves.” South Carolina and Georgia have also passed their own versions of SB 1070, and numerous other states are considering similar legislation.

Yet in the year since Whiting came down, the lower courts have generally construed the decision narrowly. For example, the Fifth Circuit recently struck down a city ordinance that required all apartment renters in the city to prove their lawful immigration status in order to obtain an “occupancy license.” The court construed Whiting as applying only to business licenses and to the employment of undocumented workers.

Whiting has likewise posed little obstacle to the lower courts that have enjoined various provisions of SB 1070 and copycat legislation in Alabama, South Carolina, and Georgia, finding broad action on immigration by the states to be preempted by federal law or to constitute violations of the Fourth and Fourteenth Amendments.

• In Alabama, a federal court recently struck down provisions of HR 56, holding that the state could not restrict housing options for undocumented immigrants. 
• In South Carolina, a federal district court blocked state law provisions criminalizing the transportation of undocumented immigrants and the failure to carry registration papers, and a provision requiring local law enforcement to verify the immigration status of persons that can be reasonably suspected of being in the country illegally. 
• In Alabama, a district court blocked a far-reaching provision that would allow for the state prosecution of immigration law violations, as well as blocking state restrictions on noncitizens looking for work and state penalties on employers that hire undocumented workers. 
• In Georgia, a federal court blocked a state law provision requiring law enforcement officers to verify the immigration status of people they reasonably suspect to be undocumented upon stop, detention, or arrest.

Thus far, the trend among the lower courts suggests that these inhumane state laws will not withstand judicial scrutiny, but that could change when the Supreme Court issues its decision in Arizona v. United States.

Based on the tenor of oral arguments, the Court may be willing to uphold provisions of SB 1070 that many previously considered to be clearly preempted by federal law. Nevertheless, prevailing expert opinion suggests that the Supreme Court will strike down at least those provisions in SB 1070 that criminalize the failure to carry proper documentation and provide penalties for seeking employment as preempted by federal law. Any other result would be contrary to long-standing Supreme Court precedent and widespread consensus among the circuits on this issue. However, the Roberts Court has surprised legal experts before by bending over backwards to find preemption where there is none and vice versa; few would be surprised if the conservative majority did so again.

Read more »

Supreme Court Upholds Arizona's Anti-Immigrant "Legal Arizona Workers Act"

Today the Supreme Court’s conservative majority upheld Arizona’s anti-immigrant Legal Arizona Workers Act in Chamber of Commerce v. Whiting. The Court held that the federal Immigration Reform and Control Act (IRCA) of 1986 did not preempt the state from revoking business licenses or mandating that employers’ check their employees’ immigration status using the federal E-Verify database.


In an effort to crack down on illegal immigration, Arizona passed a law in 2007 that punishes employers that hire undocumented workers by revoking their business license – referred to as the “business death penalty.” The law also requires employers to use the federal E-Verify system – an online employment verification database. The Chamber of Commerce and immigrant rights’ organizations teamed up as unlikely allies to oppose the Arizona law, arguing that it is expressly and impliedly preempted by federal law. The IRCA 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” undocumented workers.


Arguing that the Arizona statute falls within the licensing exception (italicized above), the majority rejected the Chamber’s argument that the definition of “licensing” should come from the context of the statute. Citing the dictionary definition of “license,” the majority concluded that Arizona’s sanctions of stripping businesses of the licenses they need to do business in Arizona was not preempted by the federal statute. The decision also upheld the Arizona provision mandating the use of E-Verify, stating that “the requirement is entirely consistent with the federal law” because “the consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law.”


In an ironic twist following the Court’s recent pro-corporate decision in AT&T Mobility v. Concepcion, the majority cited the supposedly difficult burden that a party must meet to prove that federal law preempts state law, stating: “Our precedents establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act. That threshold is not met here.” In AT&T Mobility, the majority tossed aside a California law (and more than 20 other similar laws from other states) designed to protect consumers from being cheated by corporations on the grounds that a 1922 federal statute preempted it. When evaluating a state law that threatened the rights and job opportunities of legal immigrants, however, the Court’s conservative majority was suddenly reluctant in Chamber of Commerce v. Whiting to find federal preemption.


Justice Breyer responded in a compelling dissent that “neither dictionary definitions nor the use of the word ‘license’ in an unrelated statute can demonstrate what scope Congress intended the word ‘licensing’ to have as it used that word in this federal statute.” Breyer stated that Congress set equivalent penalties for hiring undocumented immigrants and for discriminating against prospective employees. He argued that the purpose of this balance was to discourage employers from violating immigration laws while also discouraging them from making unlawful assumptions about the immigration status of applicants based on racial or linguistic factors. Arizona’s law upsets this careful federal balance, Breyer added, noting that it “will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination.” Breyer summed up his view that that federal law preempted Arizona’s statute in the following passage.

Why would Congress, after deliberately limiting ordinary penalties to the range of a few thousand dollars per illegal worker, want to permit far more drastic state penalties that would directly and mandatorily destroy entire businesses? Why would Congress, after carefully balancing sanctions to avoid encouraging discrimination, want to allow States to destroy that balance? Why would Congress, after creating detailed procedural protections for employers, want to allow States to undermine them? Why would Congress want to write into an express pre-emption provision—a provision designed to prevent States from undercutting federal statutory objectives—an exception that could so easily destabilize its efforts? The answer to these questions is that Congress would not have wanted to do any of these things. And that fact indicates that the majority’s reading of the licensing exception—a reading that would allow what Congress sought to forbid—is wrong.

Justice Sotomayor also filed a dissent in which she argued that federal law should preempt Arizona’s statute. Sotomayor stated that IRCA’s denial of work-eligibility status information to the states is inconsistent with an intent to allow states to enforce an immigration law like Arizona’s. She stated that, “[h]aving constructed a federal mechanism for determining whether someone has knowingly employed an unauthorized alien, and having withheld from the States the information necessary to make that determination, Congress could not plausibly have intended for the saving clause to operate in the way the majority reads it to do.” Sotomayor added that Congress expressly intended to create a uniform system of federal immigration enforcement when it enacted the IRCA – indeed, the statute was designed to supplant a patchwork of conflicting state laws in existence at the time – so Arizona’s state-specific immigration provision should be preempted for thwarting this congressional intent.

Reading the saving clause as the majority does subjects employers to a patchwork of enforcement schemes similar to the one that Congress sought to displace when it enacted IRCA. Having carefully constructed a uniform federal scheme for determining whether a person has employed an unauthorized alien, Congress could not plausibly have meant to create such a gaping hole in that scheme through the undefined parenthetical phrase “licensing and similar laws.”

Justice Sotomayor also found that Congress expressly rejected the idea of mandating E-Verify when it set it up as a voluntary system.

In 2003, when Congress elected to expand E-Verify to all 50 states but declined to require its use, it cited to a congressionally mandated report concluding that the annual cost of the pilot program was $6 million, the annual cost of a nationwide voluntary system would be $11 million, and the annual cost of a nationwide mandatory program would be $11.7 billion.

Justice Breyer noted that E-Verify is inherently unreliable, with an 18% of requests returning false “unemployable” reports. In one fiscal year, 46,921 workers were initially rejected but later confirmed as work authorized.


The Supreme Court could soon hear a case involving a separate anti-immigrant Arizona statute that threatens the rights of Arizona residents. The Ninth Circuit in United States v. Arizona recently blocked enforcement of a law requiring police officers to stop certain individuals whom the police suspect to be illegal immigrants.


The Supreme Court’s decision to uphold the Legal Arizona Workers Act lays bare the Court’s willingness to selectively use the preemption doctrine to support its activist conservative agenda.

Read more »