WASHINGTON, D.C. - (Mealey's) 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 yesterday 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
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.
Acting Solicitor General Neal Kumar Katyal argued on
behalf of the United States in support of the petitioners that the Arizona law
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."
Full coverage will be in the December issue. 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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