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The Legal Arizona Workers Act is an employer sanctions law, “not a licensing law,” and therefore is preempted by the Immigration Reform and Control Act, lawyer Carter G. Phillips contended Dec. 8 in a U.S. Supreme Court oral argument (Chamber of Commerce v. Whiting, U.S., No. 09-115, oral argument 12/8/10).
Phillips, representing a coalition of business and immigrant rights groups--including the U.S. Chamber of Commerce, Chicanos por la Causa Inc., and Arizona Employers for Immigration Reform--also argued that the 2007 Arizona law undermines the comprehensive federal scheme for handling worker authorization and immigration enforcement.
Meanwhile, Arizona Solicitor General Mary R. O'Grady said that the law falls under IRCA's savings clause, which permits state “licensing and similar laws,” because Congress recognized that “unauthorized employment has significant local consequences, so they did not want to fully preempt state law.”
Under the law, the state can revoke the business licenses of employers that knowingly hire illegal immigrants, and employers are required to use E-Verify, the federal government's mostly voluntary electronic employment verification program.
During the oral argument, questions focused on how to define a licensing law and whether the Arizona statute undermines the carefully constructed federal scheme that balances the interests of preventing the hiring of illegal immigrants with preventing discrimination against new hires based on national origin or other protected characteristics.
Several justices raised questions about the definition of “license” under IRCA.
Justice Anthony Kennedy said that there “really isn't” a clear definition of “license” in current jurisprudence, but that he sees “no limitation on what the state can decide is a license in any jurisprudential principle” raised by the petitioners.
However, both Phillips and Acting Solicitor General Neal K. Katyal, arguing on behalf of the Obama administration and in support of the coalition challenging the act, said the Arizona law is not a licensing law.
The “fundamental problem obviously with Arizona's scheme here is that this is not a licensing law.” It is a “worker authorization sanctioning law,” Phillips said.
According to Phillips, the Arizona law should be struck down because it disturbs the balance achieved by the federal government relating to immigration enforcement.
“Congress realized in this context that if you over-enforce in one direction, that is if you try to deter the hiring of unauthorized workers, you run a very serious risk of causing employers to err on the side of not hiring others who are in fact authorized but who may fall into protected classes,” he said.
O'Grady disagreed, stating that the Arizona law has the “same standards as federal law” for I-9 employment verification and imposes no additional burden on employers that would lead to discrimination.
IRCA specifically says that enforcement should be “uniform,” which “suggests to me that this ought to be exclusively a federal investigation and adjudication process,” not one left to a variety of state schemes,” Phillips said.
It is “quite remarkable to think that Congress intended through a parenthetical referring to 'through licensing laws' to allow the state to adopt an entire alternative shadow enforcement mechanism, nonadministrative decisionmaking process, completely a state-run operation,” Phillips added.
Katyal agreed that under IRCA Congress “set out a series of procedures, federal adjudication with an [administrative law judge], all sorts of different regulations,” and what Arizona has done “is what 40,000 different localities can do if this law is upheld.”
The resulting patchwork of state and local immigration laws would go against Congress's intent in passing IRCA to “sweep away” conflicting state enforcement regimes, Katyal said.
Justice Antonin Scalia said that the “whole problem” that prompted Arizona to enact the law is that the federal government “hasn't gone after many convictions,” under the immigration enforcement scheme laid out by IRCA.
According to Scalia, the “only option” left to the state was to “enforce the law, immigration laws, through licensing.” While IRCA set forth an immigration enforcement scheme, “the scheme in place has not been enforced, and Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration,” he said.
“Therefore, they had to take this very massive” step to enact the Legal Arizona Workers Act, Scalia said. “One wouldn't have expected it to occur under this statute, but expectations change when the federal government has simply not enforced the immigration restrictions,” he added.
O'Grady replied that licensing laws are an area that has traditionally been within the mainstream of state police power, and Congress “left important discretion [to states] to impose sanctions through licensing and similar laws, and we are doing so by establishing this scheme that provides for the suspension and revocation of state licenses.”
Justice Ruth Bader Ginsburg asked O'Grady how Arizona could take the “federal resource” of the E-Verify program, which the federal government has said is voluntary except in limited circumstances, and “turn it into something that is mandatory.”
In response, O'Grady said the Arizona E-Verify mandate is “not a burden to the objectives of Congress,” and the state “can require employers within our jurisdiction to use E-Verify.”
O'Grady also pointed out that while the law requires employers to participate in E-Verify, the state does not impose penalties against employers that fail to comply. “The consequences are the same as they are under federal law,” she said.
Scalia pointed out that the only “penalty” may be that employers in Arizona who do not participate in E-Verify do not get the “safe harbor” offered by the state law to those employers that do participate in the program.
A transcript of the oral argument can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=amky-8bxuke.
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