Supreme Court Upholds Arizona Immigration Law on Hiring

By Staff Report

May. 31, 2011

A U.S. Supreme Court decision upholding an Arizona immigration law could result in employers facing a patchwork of onerous, costly anti-immigration laws unless Congress decides to take action, attorneys say.

In its 5-3 decision May 26 in Chamber of Commerce of the United States of America et al. v. Michael B. Whiting et al., the court upheld lower court rulings that found that Arizona’s 2007 Legal Arizona Workers Act is not pre-empted by federal law.

The high court ruled that the Immigration Reform and Control Act of 1986 expressly pre-empts “any state or local law imposing civil or criminal sanctions [other than through licensing and similar laws] upon those who employ or recruit or refer for a fee for employment unauthorized aliens.”

Under the Arizona law, employers that intentionally violate the law a second time by knowingly hiring an illegal immigrant can lose their business license.

The Arizona law requires that after hiring an employee, all Arizona employers must verify their employment eligibility by using E-Verify, according to the opinion. Congress created E-Verify, an Internet-based system under which an employer can verify an employee’s work authorization status, in 1996.

The U.S. Chamber of Commerce had argued “that the Arizona law’s provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly pre-empted,” according to the opinion.

But the Supreme Court disagreed. The majority opinion says the Washington-based Chamber of Commerce and the United States as amicus argue “because it operates only to suspend and revoke licenses rather than to grant them.” But “this is contrary to the definition that Congress itself has codified. … It is also contrary to common sense. There is no basis in law, fact or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses [is] something else altogether.”

Arizona’s laws “simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws,” the majority ruled, saying that Arizona “went the extra mile in ensuring its law closely tracks [the Immigration Reform and Control Act’s] provisions in all material definitions.”

On the E-Verify issue, the high court ruled that Arizona’s requirement that employers use it “is entirely consistent with the federal law. … In fact, the federal government has consistently expanded and encouraged the use of E-Verify.”

The opinion says the Chamber of Commerce and Justice Stephen Breyer, in his dissenting opinion, argue employers “will err on the side of discrimination rather than risk the ‘business death penalty’ by ‘hiring unauthorized workers.’ ”

The majority opinion says that license termination “is not an available sanction” for simply hiring unauthorized workers, but only for “far more egregious violations of the law.”

Chief Justice John Roberts wrote the majority opinion. Justice Elena Kagan did not participate.

Earlier this year, the Supreme Court declined to hear a case in which a Louisiana employer sought to argue that federal law prohibits paying state-mandated worker’s compensation benefits to an illegal immigrant.

Reacting to the Arizona ruling, the U.S. Chamber of Commerce’s National Chamber Litigation Center issued a written statement that said, in part, the decision “does not give states or local governments a blank check to pass any and every immigration law,” which “continues to be predominantly a federal concern.”  

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, email


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