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.