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Thursday, May 26, 2011

Supreme Court Upholds Arizona Law on Hiring Aliens

Immigration and federalism remain a politically charged mix. Jennifer Epstein reports at Politico:

The Supreme Court ruled Thursday to uphold Arizona’s law that penalizes companies that knowingly hire illegal immigrants.

In a 5-3 vote, the court concluded that federal immigration law doesn’t prevent the state from revoking the business licenses of companies that violate state law.

Chief Justice John Roberts wrote in the majority opinion that the court had come to its decision because “the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law.”

More from the majority opinion:
IRCA [The Immigration Reform and Control Act] expressly reserves to the States the authority toimpose sanctions on employers hiring unauthorized workers, through licensing and similar laws. In exercising thatauthority, Arizona has taken the route least likely to cause tension with federal law. It uses the Federal Gov-ernment’s own definition of “unauthorized alien,” it relies solely on the Federal Government’s own determination ofwho is an unauthorized alien, and it requires Arizona employers to use the Federal Government’s own system for checking employee status. If even this gives rise toimpermissible conflicts with federal law, then there reallyis no way for the State to implement licensing sanctions,contrary to the express terms of the savings clause.

Because Arizona’s unauthorized alien employment law fits within the confines of IRCA’s savings clause and doesnot conflict with federal immigration law, the judgment of the United States Court of Appeals for the Ninth Circuit is affirmed.

The dissenting opinion by Justice Breyer notes the many ways in which business relies on the permission of state government:
Arizona calls its state statute a “licensing law,” and thestatute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, forit defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. §23–211(9)(a); cf. §23–211(9)(c) (excepting professional licenses, and water and environ-mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing sowould permit States to eviscerate the federal Act’s pre-emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work-ers from national-origin-based discrimination and (2) toprotect lawful employers against erroneous prosecution orpunishment.

Dictionary definitions of the word “licensing” are, as the majority points out, broad enough to include virtually any permission that the State chooses to call a “license.”