|Due in large measure to the perception, whether valid or not, that the federal government has failed in its attempt to enforce immigration laws and enact comprehensive immigration reform, many states have taken it upon themselves to pass their own legislation in the immigration arena. This article will discuss the proliferation of state immigration related legislation and address the various litigation brought by organizations as well as the federal government against states that have enacted this legislation. The federal government has historically been the principal authority with respect to U.S. Immigration laws, rules, regulations and policies. The courts have traditionally upheld the exclusive jurisdiction of the federal government concerning immigration matters. In Hines v. Davidowitz,1 the Court upheld the premise that state attempts to enact immigration related legislation were preempted under the Supremacy Clause of the U.S. Constitution. In Toll v. Moreno,2 the Court again enunciated its position that the federal government is the principal authority over U.S. Immigration law and policy. However, the Ninth Circuit in Chicanos Por La Causa v. Napolitano3 held that not every state related immigration law is preempted by federal law especially in the area of state regulated licenses and businesses.|
|In April, 2010, the Arizona State Senate enacted the Support Our Law Enforcement And Safe Neighborhoods Act (S.1070). With this Act, the Arizona legislature sought to criminalize undocumented foreign nationals in Arizona and provide local law enforcement with broad authority to detain, question and check immigration status of individuals where there was “reasonable suspicion” that the suspected person was undocumented and residing/working in Arizona illegally and without proper immigration status. This legislation led to such a public outrage that the federal government filed a challenge in U.S. v. Arizona.4|
|There is currently a split in the Circuits regarding the issue of whether states can enact immigration related legislation. This split is most pronounced in cases decided by the Ninth and Third Circuits. By virtue of another piece of legislation entitled the Legal Arizona Workers Act (LAWA), Arizona imposes penalties on employers who have hired or employ undocumented or unauthorized to work as foreign nationals. However, under the federal governments Immigration Reform And Control Act (IRCA), state and local governments are expressly preempted from imposing civil or criminal sanctions on employers who hire unauthorized workers; with one exception: a savings clause that permits state sanctions on employers in violation of licensing or similar laws.|
|The Ninth Circuit in Chicanos Por La Causa held that state employer compliance laws such as LAWA are permitted if related to a state’s ability and power to grant or revoke business licenses and approvals. In 2008, the Ninth Circuit upheld the LAWA since, as the Court reasoned, it was within IRCA’s “Savings Clause.” This decision is now on appeal to the U.S. Supreme Court.|
|However, in Lozano v. Hazelton,5 the Third Circuit held that, even where a state law is related to a business license issue, such laws are preempted because they conflict with IRCA and Congress’ attempt to create a uniform system of employment compliance laws and regulations. In Lozano, a local Pennsylvania ordinance rendered it unlawful for any business to “recruit, hire for employment or continue to employ” unauthorized workers in the city of Hazelton. The Third Circuit found this ordinance to be preempted by IRCA because it stood as an impediment to the purpose and execution of IRCA.|
|It is against this backdrop and split among the Circuits that the U.S. Supreme Court granted certiorari in Chamber of Commerce v. Whiting.6 Oral arguments were heard on December 8, 2010.|
|It is anticipated that the Court will address the issue of whether LAWA is preempted by IRCA. Essentially, the U.S. Supreme Court will address three questions:
1. Whether LAWA is invalid because it violates IRCA’s preemption clause,
2. Whether the state requirement of employers to use the E-Verify employment system is preempted by federal law which makes the use of E-Verify voluntary and,
3. Whether the Arizona statute is preempted because it dilutes Congress’ “comprehensive scheme” to regulate the employment of foreign nationals. Most likely the Court will also address the question of whether the federal government’s failure to enact comprehensive immigration reform justifies state action in Immigration Laws.
|The Petitioners were represented by Carter G. Phillips, Esq. who attempted to persuade the Court that issues surrounding employment authorization are under the exclusive purview of the federal government. Justice Scalia questioned Mr. Phillips as to why this issue is not simply a licensing law that allows regulation by the State. In addition, in a remark by Justice Scalia to the issue of enforcement, the Justice reasoned that the States have undertaken to pass and enforce immigration related laws due to the federal government’s failure to enforce said laws and restrictions.|
|Neal Kumar Katyal, Esq., Acting Solicitor General of the United States, also argued the case on behalf of the federal government, and in support of the Petitioners. He reemphasized that any state sanction is preempted and immigration related work authorization is expressly under the jurisdiction of the federal government. Since Congress formulated and passed IRCA, including federal sanctions on individuals and/ or corporations that employ unauthorized workers, any employment-based law that can lead to federal violations is under the sole and exclusive domain of the federal government, argued Mr. Katyal.|
|In response, Mary R. O’Grady, Esq., Solicitor General of Arizona, representing the Respondent, argued that States have policing powers to regulate the conduct of employers within a State’s jurisdiction. Justice Ginsberg asked Ms. O’Grady to respond to the apparent contradiction, in that the States cannot impose a fine under IRCA, but, according to Ms. O’Grady, can revoke a business license entirely if there are immigration related unauthorized employees. Ms. O’Grady replied that there was no contradiction since the States have authority to impose sanctions pursuant to their licensing laws. Justice Ginsberg also questioned under what authority could Arizona mandate that employers use of the E-Verify7 system when the federal government has made participation in this program voluntary.|
|In apparent agreement with Justice Ginsberg’s question, Justice Kennedy opined that the Arizona law is a “classic example of a State doing something that is inconsistent with a Federal requirement.” Justice Breyer also questioned the enormous discrepancy in penalties imposed under the federal law versus Arizona law. Ms. O’Grady’s response was that the savings clause permitted the States to impose these penalties, and that there were no new obligations being imposed on employers or individuals by Arizona that were not already imposed by the federal government.|
|Employers, attorneys, judges, legal scholars and foreign nationals are all anxiously awaiting the Supreme Court’s ruling because it will determine in whose court the ball falls, state or federal, and consequently whose rules must be followed. This is one of the most highly charged issues in Immigration Law today.|
|Howard R. Brill, Hempstead, N.Y. concentrates his nationwide practice in Immigration and Naturalization Law. Mr. Brill is a former Chair of the NCBA Immigration Law Committee and, currently, serves as Co-Chair of the NCBA BOLD Task Force.|
|1. Hines v. Davidowitz, 312 U.S. 52 (1941).
2. Toll v. Moreno, 458 U.S.1 (1982).
3. Chicanos v. Napolitano, 544 F.3d 976 (9th Cir. 2009).
4. U.S. v. Arizona, 703 F. Sup.2d 980 (D.Ariz., July 28, 2010).
5. Lorano v. Hazelton, 2010WL3504538 (3rd Cir., September 10, 2010).
6. Chamber of Commerce v. Whiting, 130 S.Ct. 3498 (2010).
7. E-VERIFY is a free, Internet based system operated jointly between the United States Immigration and Citizenship Services (USCIS) and the Social Security Administration (SSA).
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