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WASHINGTON, D.C. -- An Arizona statute that imposes sanctions on employers who hire unauthorized aliens must be ruled as invalid under the Immigration Reform and Control Act of 1986 (IRCA), Carter G. Phillips of Sidley Austin in Washington argued Dec. 8 before the U.S. Supreme Court on behalf of a coalition of groups challenging the law (Chamber of Commerce of the United States of America, et al. v. Michael B. Whiting, et al., No. 09-115, U.S. Sup.).
"[I]f you deal with a situation where the Federal Government has enacted--I'm sorry--has enforced a provision and imposed a penalty through the Federal scheme, that then as a supplement to that the State does in fact have the authority to add something over and about what it--what the Federal Government has done.
"But it seems to me quite remarkable to think that Congress intended through a parenthetical referring to 'through licensing laws' to allow the State to adopt an entire alternative shadow enforcement mechanism, non-administrative decision-making process, completely a State-run operation; and even at the end, the sanction is not . . . imposed ultimately in effect by . . . any regulating entity. It is ordered by a State court," Phillips argued.
In 2007, Arizona enacted the Legal Arizona Workers Act. A coalition of groups challenged the constitutionality of the act, arguing, in part, that it was preempted by the IRCA. The multiple lawsuits that were filed against Arizona's governor, attorney general, county attorneys and other state officials were consolidated in the U.S. District Court for the District of Arizona.
The District Court held that the act was not preempted. The Ninth Circuit U.S. Court of Appeals affirmed. The plaintiffs, led by Chamber of Commerce of the United States of America, petitioned the U.S. high court.
Acting Solicitor General Neal Kumar Katyal argued on behalf of the United States in support of the petitioners that the Arizona law is preempted.
But Arizona Solicitor General Mary R. O'Grady of Phoenix told the justices that while the IRCA preempted some of the state's power, "it preserved significant State authority through the savings clause that permits a State to impose sanctions through licensing and similar laws."
[Editor's Note: Full coverage will be in the December issue of Mealey's Litigation Report: Employment Law. In the meantime, the oral arguments transcript is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #73-101210-018T. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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