Chamber of Commerce of the U.S. v. Whiting

• Decision Date: 26 May 2011
• Docket Number: No. 09–115.,09–115.
• Parties: CHAMBER OF COMMERCE OF THE UNITED STATES of America, et al., Petitioners, v. Michael B. WHITING et al.
• Court: U.S. Supreme Court

563 U.S. 582

131 S.Ct. 1968

179 L.Ed.2d 1031

CHAMBER OF COMMERCE OF THE UNITED STATES of America, et al., Petitioners,

v.Michael B. WHITING et al.

No. 09–115.

Supreme Court of the United States

Argued Dec. 8, 2010.

Decided May 26, 2011.

Carter G. Phillips, Washington, DC, for Petitioners.

Neal Kumar Katyal, Acting Solicitor General, for United States as amicus curiae, by special leave of the Court, supporting the Petitioners.

Mary R. O'Grady, Solicitor General, Pheonix, AZ, for Respondents.

Robin S. Conrad, Shane B. Kawka, Washington, D.C., Carter G. Phillips, Eric A. Shumsky, Quin M. Sorenson, Matthew D. Krueger, Sidley Austin LLP, Washington, D.C., for Petitioner Chamber of Commerce of the United States of America.

Terry Goddard, Attorney General of Arizona, Mary R. O'Grady, Solicitor General, Kathleen P. Sweeney, Christopher A. Munns, Assistant Attorneys General, Phoenix, Arizona, for Respondents Arizona Governor Janice K. Brewer, Department of Revenue Director Gale Garriott, and William Mundell, Registrar of Contractors.

Roger W. Hall, Buchalter, Nemer, P.C., Scottsdale, Arizona, for Respondents County Attorneys of Apache, Cochise, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, and Yavapai Counties.

Eileen Gilbride, Jones Skelton & Hochuli PLC, Phoenix, Arizona, for Respondent Richard Romley, Maricopa County Attorney.

Chris M. Roll, Florence, Arizona, for Respondent James P. Walsh, Pinal County Attorney.

Michael Jay Lessler, Flagstaff, Arizona, for Respondent David W. Rozema, Coconino County Attorney.

Daniel S. Jurkowitz, Tucson, Arizona, for Respondent Barbara LaWall, Pima County Attorney.

William J. Kerekes, Yuma, Arizona, for Respondent Joe Smith, Yuma County Attorney.

Chief Justice ROBERTS delivered the opinion of the Court, except as to Parts II–B and III–B.^*

Federal immigration law expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ ... unauthorized aliens." 8 U.S.C. § 1324a(h)(2). A recently enacted Arizona statute—the Legal Arizona Workers Act—provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. The law also requires that all Arizona employers use a federal electronic verification system to confirm that the workers they employ are legally authorized workers. The question presented is whether federal immigration law preempts those provisions of Arizona law. Because we conclude that 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, we hold that the Arizona law is not preempted.

I

A

In 1952, Congress enacted the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq . That statute established a "comprehensive federal statutory scheme for regulation of immigration and naturalization" and set "the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country." De Canas v. Bica, 424 U.S. 351, 353, 359, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976).

In the years following the enactment of the INA, several States took action to prohibit the employment of individuals living within state borders who were not lawful residents of the United States. For example, in 1971 California passed a law providing that "[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers." 1971 Cal. Stats. ch. 1442, § 1(a). The California law imposed fines ranging from $200 to $500 for each violation of this prohibition. § 1(b). At least 11 other States enacted provisions during that same time period proscribing the employment of unauthorized aliens.¹

We first addressed the interaction of federal immigration law and state laws dealing with the employment of unauthorized aliens in De Canas, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43. In that case, we recognized that the "[p]ower to regulate immigration is unquestionably ... a federal power." Id., at 354, 96 S.Ct. 933. At the same time, however, we noted that the "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State," id., at 356, 96 S.Ct. 933, that "prohibit[ing] the knowing employment ... of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [the State's] police power," ibid., and that the Federal Government had "at best" expressed "a peripheral concern with [the] employment of illegal entrants" at that point in time, id., at 360, 96 S.Ct. 933. As a result, we declined to hold that a state law assessing civil fines for the employment of unauthorized aliens was preempted by federal immigration law.

Ten years after De Canas, Congress enacted the Immigration Reform and Control Act (IRCA), 100 Stat. 3359. IRCA makes it "unlawful for a person or other entity ... to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien." 8 U.S.C. § 1324a(a)(1)(A). IRCA defines an "unauthorized alien" as an alien who is not "lawfully admitted for permanent residence" or not otherwise authorized by the Attorney General to be employed in the United States. § 1324a(h)(3).

To facilitate compliance with this prohibition, IRCA requires that employers review documents establishing an employee's eligibility for employment. § 1324a(b). An employer can confirm an employee's authorization to work by reviewing the employee's United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver's license and social security card. § 1324a(b)(1)(B)-(D). The employer must attest under penalty of perjury on Department of Homeland Security Form I–9 that he "has verified that the individual is not an unauthorized alien" by reviewing these documents. § 1324a(b)(1)(A). The form I–9 itself "and any information contained in or appended to [it] ... may not be used for purposes other than for enforcement of" IRCA and other specified provisions of federal law. § 1324a(b)(5).

Employers that violate IRCA's strictures may be subjected to both civil and criminal sanctions. Immigration and Customs Enforcement, an entity within the Department of Homeland Security, is authorized to bring charges against a noncompliant employer under § 1324a(e). Depending on the circumstances of the violation, a civil fine ranging from $250 to $16,000 per unauthorized worker may be imposed. See § 1324a(e)(4)(A) ; 73 Fed.Reg. 10136 (2008). Employers that engage in a pattern or practice of violating IRCA's requirements can be criminally prosecuted, fined, and imprisoned for up to six months. § 1324a(f)(1). The Act also imposes fines for engaging in "unfair immigration-related employment practice[s]" such as discriminating on the basis of citizenship or national origin. § 1324b(a)(1); see § 1324b(g)(2)(B).

Good-faith compliance with IRCA's I–9 document review requirements provides an employer with an affirmative defense if charged with a § 1324a violation. § 1324a(a)(3).

IRCA also restricts the ability of States to combat employment of unauthorized workers. The Act 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 or refer for a fee for employment, unauthorized aliens." § 1324a(h)(2). Under that provision, state laws imposing civil fines for the employment of unauthorized workers like the one we upheld in De Canas are now expressly preempted.

In 1996, in an attempt to improve IRCA's employment verification system, Congress created three experimental complements to the I–9 process as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–655, note following 8 U.S.C. § 1324a. Arizona Contractors Assn., Inc. v. Candelaria, 534 F.Supp.2d 1036, 1042 (Ariz.2008) ; see 8 U.S.C. § 1324a(d). Only one of those programs—E-Verify—remains in operation today. Originally known as the "Basic Pilot Program," E–Verify "is an internet-based system that allows an employer to verify an employee's work-authorization status." Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 862 (C.A.9 2009). An employer submits a request to the E–Verify system based on information that the employee provides similar to that used in the I–9 process. In response to that request, the employer receives either a confirmation or a tentative nonconfirmation of the employee's authorization to work. An employee may challenge a nonconfirmation report. If the employee does not do so, or if his challenge is unsuccessful, his employment must be terminated or the Federal Government must be informed. See ibid.

In the absence of a prior violation of certain federal laws, IIRIRA prohibits the Secretary of Homeland Security from "requir[ing] any person or ... entity" outside the Federal Government "to participate in" the E–Verify program, § 402(a), (e), 110 Stat. 3009–656 to 3009–658. To promote use of the program, however, the statute provides that any employer that utilizes E–Verify "and obtains confirmation of identity and employment eligibility in compliance with the terms and conditions of the program ... has established a rebuttable presumption" that it has not violated IRCA's unauthorized alien employment prohibition, § 402(b)(1), id., at 3009–656 to 3009–657.

B

Acting against this statutory and historical background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, "licensing and similar laws," 8 U.S.C. §...