Arizona Catches a Break from the Supreme Court

By Janice Kephart on May 26, 2011

Wow. E-Verify. Our hard-working worker authorization program catches a break from the Supreme Court. Let me first be grateful to Supreme Court Justice Kagan; her recusal helped support redemption for Arizona, our national punching bag for the Department of Justice as of late. As Solicitor General, Kagan had authored the (poorly argued) brief stating that the Supreme Court should review the Ninth Circuit decision and questioned whether Arizona's E-Verify law was pre-empted by federal immigration law. In the end her recusal didn't really matter; the win was 5-3, and a bit of a surprise to those of us that had been watching the E-Verify drama roll out over these past few years and deeply concerned that the Supreme Court would support the administration's position to cancel out Arizona's worker authorization law. Whowouldathunkit?

I took on the case of E-Verify a few years ago when the Chamber of Commerce's attacks almost sunk the program. The program itself has worked hard to make itself strong, durable, fast, efficient, accurate, and helpful. While the case decided today did not relate to the validity of E-Verify, the political ramifications for the future of this long-accosted program were potentially significant. A ruling nullifying Arizona's requirement that its employers use E-Verify to determine worker authorization or risk losing their license to operate was the pilot case for other states' E-Verify laws and states considering passing such a law. Moreover, a win would have been a shot in the arm to the Chamber of Commerce, which has fought worker authorization in every form for years. A Supreme Court ruling would enable the Chamber's powerful lobbying organization to gain steam in decimating E-Verify and continuing to spread the misconstrued data they have been spreading like fodder to everyone for years.

On Capitol Hill, will a Supreme Court decision spur House Judiciary Chairman Lamar Smith (R-TX) to permanently reauthorize E-Verify and make it mandatory across all states and all types of employers? Perhaps yes. The federal government does not really want, after all, 50 different laws pertaining to E-Verify. It is good to have for now, to build momentum for a good program and make E-Verify's use a fait-de-compli, but down the road every state having its own version of worker authorization laws is hard on employers in multiple states and that's hard on Immigration and Customs Enforcement -- when and if they ever actually return to worksite enforcement -- to try to determine which employers are abiding by the law or acting in good faith. If states and the federal government have different standards pertaining to use of E-Verify and licensing, even if the federal law is eventually found to pre-empt some of these state laws, that complicates what is often an already difficult process of determining employer accountability in its worksite caseload.

While many folks are relating the court's rulings, I think it best to let the court speak for itself. However, summaries do hold value, and this, in essence, is what the Supreme Court said: (1) Arizona's licensing laws are neither expressly or implicitly pre-empted by federal law; (2) Arizona's E-Verify law is not implicitly pre-empted nor does it "obstruct the aims of the federal program." Moreover, the Chamber's arguments were repeatedly found to be without merit. At one point, Chief Justice Roberts responds to a statutory construction argument by the Chamber as not "remotely discernible in the statutory text." Some excerpts from the ruling:

ROBERTS, C. J., delivered the opinion of the Court, except as to Parts II–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and concurred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case. …

Parts I and II: 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. While IRCA prohibits States from imposing “civil or criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” §1324 a(h)(2). That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. …

Part II–B: The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber's argument is that Congress intended the federal system to be exclusive. But Arizona's procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority. …

Part III–A: Arizona's requirement that employers use E-Verify is not impliedly preempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretary of Homeland Security may not require any person or . . . entity” outside the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing about what the States may do… Moreover, Arizona's use of E-Verify does not conflict with the federal scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of the employee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebuttable presumption of compliance with the law. Pp. 23–24. …

Part III–B:

Arizona's requirement that employers use E-Verify in no way obstructs achieving the aims of the federal program. In fact, the Government has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available in all 50 States. And the Government has expressly rejected the Chamber's claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.


I wonder what the e-mail exchange was this morning between Neal Katyal, the Acting Solicitor General, and the White House, when he learned that the Arizona E-Verify case he personally argued on behalf of the Obama administration, and basically the Chamber of Commerce as well, lost. Katyal only argues the most important cases, maybe one or two a session, and the Solicitor General is normally not supposed to lose. I wonder if the administration is now just a little worried that the tide may be turning and if they lose the "other" Arizona case, states will continue to get bolder in taking on immigration as an issue not wholly owned and operated by the federal government?

I am not sure, of course. I am much more a proponent of the federal government actually doing its job in enforcing immigration laws, with support from the states, then the states harkening to a cowboy mentality on immigration enforcement. That's not good policy, and inevitably creates an uneven enforcement regime that is disharmonious, to say the least. However, you can't blame the states when the federal government not only does not help clean up the immigration mess, but walks away from it, and then puts a state in "time out" for deciding to clean up the mess on its own.

Maybe the fact that the Supreme Court has decided in favor of a state law pertaining to immigration will slow down President Obama from being so cavalier in his use and discussion of immigration law, even with news in Homeland Security Today that he is considering reducing our Border Patrol numbers due to the current level of "acceptable" illegal immigration flows. No worries. Our president is a former constitutional law professor. I hope this doesn't mean a private e-mail lecturing the Chief Justice on the meaning of pre-emption…