Chamber of Commerce, et al. v. Whiting, et al.

Case Updates

Held:

(1) Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.

(2) Arizona’s requirement that employers use E-Verify is not impliedly preempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretary of Homeland Security may not require any person or . . . entity” outside the Federal Government “to participate in” E-Verify.

(3) The Arizona licensing law is not impliedly preempted by federal law. Given that Congress specifically preserved such [licensing] authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority.

NCLC urged the Supreme Court to hold that the employment provisions of Arizona’s 2007 immigration law are preempted by the Immigration Reform and Control Act (IRCA). The Arizona law imposes sanctions on employers, including the revocation of business licenses without an opportunity for a hearing, who are deemed to have knowingly hired undocumented workers. The state also requires mandatory compliance with the E-Verify employment verification program, which is voluntary under federal law. IRCA, passed in 1986, expressly preempts any state or local laws, other than licensing and similar laws, that impose penalties upon those who employ undocumented workers. NCLC argued that the Arizona law is not a licensing law, but rather a regulatory system for determining employment authorization.