The U.S. Supreme Court has ruled that federal immigration law doesn’t pre-empt an Arizona law, The Legal Arizona Workers Act. Therefore, Arizona employers that knowingly or intentionally hire illegal immigrants may have their licenses to do business in the state revoked or suspended. (Chamber of Commerce of the U.S. v. Whiting, U.S.S.Ct., No. 09-115, 2011)
Patchwork or pre-emption? Federal immigration law—the 1986 Immigration Reform and Control Act (IRCA)—prohibits employers from employing illegal immigrants, requires employers to check all new hires’ work status through the Form I-9 process and imposes civil and criminal penalties on noncompliant employers. The IRCA doesn’t, however, pre-empt state licensing laws.
That was the key to the Supreme Court’s decision to uphold the Arizona law. A “license” is any agency permit, certificate, approval, registration, charter or similar form of authorization that’s legally required. Licenses include articles of incorporation, certificates of partnership and grants of authority to foreign companies to do business in the state.
Arizona’s law also requires employers to use the federal government’s E-Verify program for all new hires.
The Chamber of Commerce sued, claiming that the IRCA pre-empted the state’s law. Both a federal trial court and an appeals court ruled that the law was valid and wasn’t pre-empted by the IRCA. The Supreme Court agreed.
Supreme Court: The IRCA prohibits states from imposing penalties on employers that employ illegal immigrants. However, it preserves state authority to impose sanctions through licensing and similar laws, which is what Arizona has done. License termination isn’t available if an employer simply hires an unauthorized immigrant; it applies when the employment is knowing and intentional. The Court also said that Congress uses a similar definition of license in other federal laws, so it was permissible for Arizona to define the term broadly. Finally, the Court said that the fact that the federal government’s requirement to use E-Verify in limited circumstances didn’t mean a state couldn’t make its use mandatory.
Impact. Several states, including Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Virginia, and West Virginia, also have work authorization laws. This decision doesn’t necessarily mean that those laws are now automatically valid. The Supreme Court was careful to detail the similarities between Arizona’s law and the IRCA:
- The state and federal laws had the same definition of “illegal immigrant.”
- Both federal and state laws require employers to verify the work status of new hires.
- Employers that complete the I-9 process in good faith can’t be penalized under federal and state laws.
- Under both federal and state laws, employers that use E-Verify are presumed to comply with the IRCA.