By Elliott T. Dube
The U.S. Supreme Court's recent decision to strike down a provision of
Arizona's controversial anti-illegal immigration law making it a crime for an
unauthorized immigrant to seek or engage in work in the state will not have a
substantial effect on employers by itself, analysts who have followed the case
On June 25, the court invalidated three sections of Arizona's S.B. 1070,
including Section 5 that makes it a state misdemeanor for “an unauthorized alien
to knowingly apply for work, solicit work in a public place or perform work as
an employee or independent contractor” (Arizona v. United States, U.S.,
No. 11-182, 6/25/12; 63 BTM 201, 6/26/12).
The court found that the federal Immigration Reform and Control Act is a
“comprehensive” framework for preventing the employment of illegal immigrants.
This framework provides only civil penalties for aliens who seek or engage in
unauthorized work, the court noted. It determined that Congress made a
“deliberate choice” not to impose criminal sanctions on such workers. Section 5
of S.B. 1070 imposes such sanctions and thus impermissibly conflicts with
federal law, the court held.
Multiple analysts told BNA that the court's decision leaves states aiming to
curb the employment of illegal immigrants with little other than the option of
mandating employers' use of E-Verify, the federal government's electronic
employment verification system.
Michael Fix, senior vice president with the Migration Policy Institute and
co-director of the National Center on Immigrant Integration Policy, told BNA
June 28 that the court created a “more direct impact” on employers when it held
last year that states may mandate employers' use of E-Verify.
In its May 2011 decision in Chamber of Commerce v. Whiting ( 131 S.
Ct. 1968, 32 IER Cases 225; 62 BTM 169, 5/31/11), the Supreme Court upheld the
Legal Arizona Workers Act.
The statute, enacted in 2007, allows the state to revoke the business
licenses of employers that knowingly hire illegal immigrants and requires
employers in the state to enroll in E-Verify.
The Whiting court found that the federal Immigration Reform and
Control Act does not preempt the Legal Arizona Workers Act because the state
statute is a “licensing provision.”
Therefore, the court said, the state statute is not subject to the IRCA's
express preemption of “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 Arizona
statute does not otherwise conflict with federal law, the court concluded.
To the extent that Arizona companies need workers and increasingly are
struggling to find them in part because of the “leakage” of immigrants out of
the state, Fix said, the court's S.B. 1070 ruling will not do anything to plug
the leak. He said the ruling might end up exacerbating the problem, as the court
upheld a particularly contentious provision in S.B. 1070 that requires Arizona
officers stopping, detaining, or arresting a person to make a reasonable attempt
to determine the person's immigration status if there is “reasonable suspicion”
that the person is an alien who is unlawfully present in the United States.
Garrick Taylor, vice president of communications with the Arizona Chamber of
Commerce and Industry, told BNA June 27 that the impact of the court's S.B. 1070
decision is primarily in the area of law enforcement and that it will have “very
little effect” on the workplace.
Employers already face “steep” and “dire” consequences if they do not meet
the requirements of the Legal Arizona Workers Act, Taylor said. He added that
E-Verify signs have become common in Arizona workplaces.
Taylor said his organization remained neutral during the legislative process
that resulted in S.B. 1070's enactment. He said the chamber only stepped into
the controversy surrounding the law when critics of its “reasonable suspicion”
section and other provisions began to launch boycotts of travel within Arizona
and of the state's businesses.
Other states followed Arizona's lead in passing stringent anti-illegal
immigration laws. Two of them, Alabama and South Carolina, enacted provisions
that criminalize an illegal immigrant's seeking or engaging in work, similar to
Section 5 of S.B. 1070.
Crystal Williams, executive director of the American Immigration Lawyers
Association, told BNA June 29 that these provisions are “toast” now that the
Supreme Court has issued its ruling.
In the ruling's wake, for states to make E-Verify enrollment mandatory for
their employers is “pretty much the only avenue that they have” to combat the
employment of unauthorized foreign-born workers, Williams said.
“Other than that, they are pretty much not in the business of criminalizing
or otherwise acting on employment within the state,” she said. “It is a totally
During a June 28 teleconference held by ImmigrationWorks USA, Ben Winograd, a
staff attorney with the American Immigration Council, pointed out that a
business has to go through its state to obtain its license, whereas an immigrant
has to go through the federal government to obtain authorization to work in the
“So it's almost a jurisdictional issue--who's controlling whose licenses,” he
“I think that employers overall are breathing some sigh of relief that they
for the most part only have to worry about one set of laws and not 50 sets of
laws,” Williams said.
Ian Macdonald, co-chairman of Littler Mendelson's Immigration & Global
Migration Practice Group in Atlanta, echoed that belief.
He told BNA June 27 that many companies operating in multiple states have
been left “scratching their heads” and have needed to reformat their internal
policies to comply with different states' anti-illegal immigration laws.
Ultimately, employers desire predictability, he said.
“I think the message to employers is: While this does indicate the court's
opinion on immigration and whether it's a federal question, on a pragmatic
day-to-day doing-business level, there is no change,” Macdonald said. “Companies
must diligently ensure that they comply with state laws, particularly
considering the fact that states are now moving from implementation of these
laws to an enforcement and penalty collection phase.”
He added that he has been handling cases in which employers have received
state audit letters requesting that they confirm and submit evidence that they
have enrolled in E-Verify. Failure to meet states' E-Verify requirements can
result in fines and other penalties for employers.
“Until the federal government comes out with a bill moving E-Verify from a
voluntary system to a required system for employers, I think that there's going
to be room for states to fill that void,” Macdonald said.
But a continuously uncertain economic climate poses a practical problem for
states moving toward mandatory E-Verify use by employers, Louis Moffa of
Montgomery McCracken Walker & Rhoads in Cherry Hill, N.J., said during the
ImmigrationWorks USA teleconference. These states might face opposition from
chambers of commerce and local businesses claiming that such mandatory E-Verify
use would have a job-killing effect, he said.