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Split U.S. High Court Upholds Arizona's Alien Employment Statute

WASHINGTON, D.C. - (Mealey's) An Arizona statute that imposes sanctions on employers who hire unauthorized aliens is not preempted by the Immigration Reform and Control Act of 1986 (IRCA), a split U.S. Supreme Court ruled May 26 (Chamber of Commerce of the United States of America, et al. v. Michael B. Whiting, et al., No. 09-115, U.S. Sup.). 

"ICRA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others.  We hold that 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," Chief Justice John G. Roberts Jr. wrote for the majority.   

Justices Antonin Scalia, Anthony M. Kennedy and Samuel Anthony Alito Jr. joined in the opinion in full.  Justice Clarence Thomas joined in parts of the opinion and concurred in the judgment. 

Justice Stephen G. Breyer filed a dissenting opinion, in which he was joined by Justice Ruth Bader Ginsburg, holding that the Arizona law does not fall within the IRCA's savings clause that preserves from preemption state "licensing and similar laws."   

"Arizona calls its state statute a 'licensing law,' and the statute uses the word 'licensing.'  But the statute strays beyond the bounds of the federal licensing exception, for it defines 'license' to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State.  . . .  Congress did not intend its 'licensing' language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act's pre-emption provision, indeed to subvert the Act itself, by undermining Congress' efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment," Justice Breyer wrote. 

Justice Sonia Sotomayor also filed a dissenting opinion.  She opined that the majority's "reading of the saving clause cannot be reconciled with the rest of IRCA's comprehensive scheme.  Having constructed a federal mechanism for determining whether someone has knowingly employed an unauthorized alien, and having withheld from the States the information necessary to make that determination, Congress could not plausibly have intended for the saving clause to operate in the way the majority reads it to do.  When viewed in context, the saving clause can only be understood to preserve States' authority to impose licensing sanctions after a final federal determination that a person has violated IRCA by knowingly employing an unauthorized alien. Because the Legal Arizona Workers Act instead creates a separate state mechanism for Arizona state courts to determine whether a person has employed an unauthorized alien, I would hold that it falls outside the saving clause and is pre-empted." 

Justice Elena Kagan took no part in the consideration or decision of the case.  

[Editor's Note:  Full coverage will be in the June issue of Mealey's Litigation Report: Employment Law.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-110617-006Z.  For all of your legal news needs, please visit] 

Download the document now: - Document #73-110617-006Z - Document #73-110617-006Z 

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