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Supreme Court Sides Against Chamber of Commerce!

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Admittedly, the Court’s five conservatives are siding with conservative ideology against business interests here, but Chamber of Commerce v. Whiting is an interesting case for other reasons as well. The ruling handed down today concerns an Arizona law that 1)provides sanctions against employers that hire illegal immigrants that hire illegal immigrants, and 2)requires Arizona employers to use the federal “E-Verfiy” program. Congress does not permit states to “impos[e] civil or criminal sanctions (other than throughlicensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.” Hence, Arizona wrote its law in a way that, on its face, only suspended or revoked the licenses of businesses found guilty of knowingly applying illegal immigrants. The Court held 5-3 (with Thomas joining both key holdings but not some of the specific arguments) that both elements of the Arizona law were not-prempted by Congress.

The majority’s argument, in essence, is that the Arizona law in consistent with widely understood definitions of “licensing,” and because it was tailored to the requirements of the federal law should be upheld. Breyer’s dissent argues that construing “license” broadly in the context of the statute “undermin[es] Congress’ efforts (1) to protect lawful work-ers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.” Sotomayor’s dissent argues that “[w]hen 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.”

This is a close case, and Arizona’s scapegoating of illegal immigrants in general is hateful (although employer sanctions are certainly preferable to directly targeting illegal immigrants.) And yet, I’m actually not without sympathy to the argument made by the conservative majority here, for the same reason I think they were wrong in the recent AT&T class action case: Congress is free to favor lessening the regulatory burden on businesses over other state objectives, but we cannot simply assume that it means to do so. I am much more concerned about this possibility that the law could lead to more discrimination against lawful workers — which, as Breyer points out, is serious — but it could be argued that Congress opened the door itself by creating the saving clause about licensing restrictions.

If I had to decide now, my inclination would be to hold that the sanctions in the Arizona law conflict with federal law and the requirement to use E-Verify does not — but I’m open to persuasion on both counts.

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  • Joe

    Since I’m not inclined to take Scalia’s approach in the CA prison case and bend over backwards to stretch the law for one side to win here, I am inclined to agree with you that this is a case that can go either way but to be concerned about it all the same at least on policy grounds. And, maybe more. Given that, I was inclined to let the administration (against law) be a sort of tiebreaker. But, the result is not shocking or anything.

  • ODB

    Please proof-read your first two paragraphs so I can know what the hell you are talking about.

    • Flowers

      Exactly. I was gonna say, “Are you open to an editor? This was a piece of crap.” Please say it was written on an iPhone or something.

      • N.Thomas.

        This was a piece of crap.

        Kinda hard on ol’ Scotty, aren’t you?

  • Xenocrates

    Also, too, how are the police qualified to determine immigration status? By way of personal experience, I worked for the old INS in the late ’70s until 1982. I took many, many hours of training to determine citizenship/nationality issues. The AZ cops will just go with “It’s the brown guy, get him!” Right? Right??? E-Verify was put in place after I left, so I have no comment, other than to say it’s probably another POS enacted to make the contractor(s) rich. I’ll leave it to the real legal scholars to make further determinations on the validity of the Court’s decision, however.

  • jsmdlawyer

    The current Court’s preference for the business community is one of convenience rather than real common interest. In other words, as against the hapless consumer or tort plaintiff, business wins every time, because that’s the politics of the thing.

    But when the business community bumps up against the all powerful security state, especially where, as here, it’s an issue of business convenience (“let us keep hiring cheap workers and not have to check those papers”), the desire to stomp on brown and black people and “protect” real Americans from the scourge of furreners has greater priority in the hierarchy of things.

  • DrDick

    I can only assume that this must have produced some rather massive cognitive dissonance among the conservative wing. States rights or corporate rights?

    • astonishingly dumb hv

      States rights or corporate rights?

      I’m not sure they even knew they might have to choose one day.

    • R. Johnston

      Actually, it was an easy call for them. The Obama administration supported the petitioners and the first rule of conservatism these days is that in any close call Obama’s always wrong.

  • Anderson

    I don’t see what’s the problem with the opinion.

    AZ said “you hire undocumented immigrants, you lose your business license.”

    Congress left that open (and could close that loophole any time it liked, I suppose).

    Not everything the rednecks want is unconstitutional, or even wrong. Some of them are even drinking pretty good beer these days.

    • Joe

      Well, three justices found fault with it, but more importantly, you know, Roberts wrote the majority and the Obama Administration supported the other side, so clearly it is wrong. (/snark)

      • Scott Lemieux

        What resemblance this bears to my argument — which is that I found Roberts’s analysis substantial and could well be persuaded that it’s right on all counts, although I was marginally more convinced by Breyer’s argument that, in context, Congress did not intend the saving “license” clause to be read as broadly as Arizona did — is unclear.

        • Joe

          I’m sorry. Did you read the comments?

          “Actually, it was an easy call for them. The Obama administration supported the petitioners and the first rule of conservatism these days is that in any close call Obama’s always wrong.”

          Or “the desire to stomp on brown and black people”

          Or [paraphrase] “they are just a bunch of knee-jerk corporate shills.

          My first comment agrees with you. This one isn’t in response to you.

          • Scott Lemieux

            Sorry, it seemed like Anderson was responding to me…

            • Joe

              I took Anderson to be stating an opinion on the case and his “redneck” comment didn’t seem to be targeted to you, since your post did not warrant it. OTOH, some of the replies did.

              • Anderson

                Sorry to be unclear. The “rednecks” comment was directed generally — there’s a reflex to dislike any opinion that warms the hearts of our political opponents, and I was commenting on that reflex, which your post itself was admirably free of.

    • David M. Nieporent

      Neither does Scott; since he’s not a lawyer, he doesn’t bother to even read the opinions, let alone attempt to analyze them legally.

      • Scott Lemieux

        Christ, the Donalde could make a more useful contribution.

  • L.M.

    This law actually predates SB 1070 (the “show your papers” law requiring Arizona law enforcement officers to determine a detained person’s immigration status, ostensibly on the basis of reasonable suspicion that the person’s presence in the U.S. violates federal immigration laws). The SB 1070 lawsuits are still pending in district court.

    The basic principle at stake is the same in both cases (does Arizona’s overly zealous enforcement of federal immigration laws conflict with the more-measured policy of the federal government, in a sphere where the policy of the federal government is paramount?), but there’s a much stronger argument that SB 1070 is actually preempted. IRCA’s licensing exception is so poorly crafted that this case really could have gone either way. (And, in fact, this case basically resolves a circuit split over the meaning of the licensing exception.)

    • L.M.

      This was meant as a reply to Xenocrates above. Sorry.

  • patrick II

    It seems to me that this may only affect small businesses within AZ, but not larger corporations. I don’t think Arizona is going to pull GE’s business liscense because an illegal emptying trash at the local substation, or Walmart because an illegal subcontractor was installing doors.

  • M.

    On a slightly tangential note, I predict that this will make identity theft even more intractable. People will just use the crime to get around the E-Verify system.

  • rosmar

    Doesn’t E-Verify, like any database, have errors in it?

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