Julie Myers Wood: Supreme Court Affirms an Arizona Immigration Law - What It Means

The former head of U.S. Immigration and Customs Enforcement (ICE) gives her analysis of the Supreme Court's opinion in Chamber of Commerce v. Whiting, in which the court upheld key provisions of the Legal Arizona Workers Act. The act authorizes suspension or revocation of business licenses for knowing or intentional employment of an unauthorized worker. It also requires employers to sign up for E-Verify. Julie Myers Wood of Immigration and Customs Solutions LLC covers what that means and what employers should do now. 

 

She writes: 

"After suffering significant setbacks in other litigation, Arizona recently had a big win at the Supreme Court in Chamber of Commerce of the United States v. Whiting. In that case, the Supreme Court addressed whether federal immigration law preempted Arizona's employer sanctions law, the Legal Arizona Workers Act of 2007. Arizona's law requires employers to use E-Verify, the federal electronic eligibility-verification system, and provides a mechanism for state courts to revoke a business license if an employer is found to have knowingly or intentionally employed unauthorized workers. Chief Justice Roberts, writing for a 5-3 Court, found that the Arizona law was not preempted, because the State's licensing provisions fall squarely within the federal statute's savings clause and the Arizona regulation does not otherwise conflict with federal law.

"The Court's decision upholding the Arizona law will likely cause even more interest in adopting mandatory E-Verify or other employer sanctions in other states, and further spur congressional proposals to require the use of E-Verify for all employers. Although some portions of the majority decision also have some interesting general language and dicta, a review of the Court's analysis does not reveal what decision the Court would make on the controversial Arizona enforcement law S.B. 1070.

"Before analyzing the Legal Arizona Workers Act, the Court first provided a brief history of the Immigration and Nationality Act (INA) and case law surrounding its implementation, focusing on how the federal government has repeatedly, yet unsuccessfully, attempted to address the magnet of illegal employment. Although the INA and its subsequent amendments were designed to establish a comprehensive federal statutory scheme for immigration regulation, the failure of effective federal enforcement has caused states to try to take unilateral action to address illegal immigration for decades.

"Many states, including Arizona, have found that voluntary participation in programs such as E-Verify and limited federal enforcement were insufficient to induce employers to become compliant. The Legal Arizona Workers Act of 2007 attempts to address this problem by linking licensing of Arizona businesses to hiring legal workers, and allows Arizona courts to suspend or revoke licenses for noncompliant businesses that knowingly or intentionally employ illegal workers." 

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Lexis.com subscribers can access the Lexis enhanced version of the Supreme Court decision with summary, headnotes and Shepard's, Chamber of Commerce of the United States v. Whiting, 2011 U.S. LEXIS 4018 (U.S. Sup., May 26, 2011).

For related content, see Charles Gordon, Stanley Mailman, and Stephen Yale Loehr, Immigration Law & Procedure §§ 7.01 to 7.06; Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure §9.03; Former ICE Leader Julie Myers Wood on 2011 Decision Enjoining Parts of Arizona's S.B. 1070 Immigration Law, 2011 Emerging Issues 5602; Julie Myers Wood: Flawed Analysis Blocks Parts of 2010 Arizona Immigration Law, 2010 Emerging Issues 5271; Julie Myers Wood Discusses Arizona's Controversial Immigration Law, 2010 Emerging Issues 5019. Lexis.com subscribers may also access additional material on Arizona's Immigration Law - S.B. 1070 and the complete Lexis.com library of Immigration materials.

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