High Court Upholds AZ Law on Hiring Unauthorized Workers

May 27, 2011 (PLANSPONSOR.com) - The U.S. Supreme Court has upheld an Arizona law that penalizes employers who knowingly hire unauthorized foreign workers.

By a 5-3 vote, the court ruled in Chamber of Commerce v. Whiting that federal immigration law does not pre-empt the Arizona statute. The National Law Journal reports that Chief Justice John Roberts Jr. wrote the majority opinion, ruling that Legal Arizona Workers Act, under which the state can revoke the licenses of businesses that intentionally hire illegal aliens, can live side by side with federal law.   

The court also upheld a provision of the Arizona law requiring companies to use the federal E-Verify system for checking the immigration status of job applicants.

According to the National Law Journal, Roberts based the pre-emption ruling on a clause of the federal Immigration Reform and Control Act that explicitly bars states from imposing separate criminal or civil sanctions for illegal hiring “other than through licensing or similar laws.” Arizona’s law, he said, “falls squarely” within that licensing exception and does not otherwise conflict with federal law. He noted the Arizona law tracks the federal definition of “unauthorized alien” and in other ways was crafted to be compatible with federal law. At least eight other states have similar laws that use license revocation as a way to discourage hiring of illegal aliens, the news report said. 

The Chamber of Commerce pressed for a single federal regime on immigration instead of a patchwork of state laws, while rights groups argued the law would encourage employers to use ethnic stereotypes and discrimination to reject job applicants so as to avoid state sanctions. But, in affirming a 9th U.S. Circuit Court of Appeals decision, Roberts rejected arguments that the Arizona statute would encourage discrimination by employers. The law has provisions giving first-time offenders a break, Roberts said, ensuring that only intentional repeat offenders would lose their licenses.  

The Chamber of Commerce criticized the decision for encouraging state regulation making life difficult for companies that hire in several states.  

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wrote a dissent voicing concern that the decision will lead employers to “erect ever stronger safeguards against the hiring of unauthorized aliens – without counterbalancing protection against unlawful discrimination.” Justice Sonia Sotomayor wrote a separate dissent, arguing that the Arizona law interferes with the federal mechanism for determining whether an employer has hired an illegal alien. She also said the Arizona requirement that employers use the federal E-Verify system imposes burdens on the federal government that Congress did not intend when it made the program voluntary.