563 U.S. 582, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011)
In 1952 Congress enacted the Immigration and Nationality Act establishing a comprehensive federal scheme for immigration and naturalization.1
In the years following the enactment of the INA, several States took action to prohibit the employment of individuals living within state borders who were not lawful residents of the United States.2 For example, in 1971 California passed a law providing that no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.3 At least 11 other States enacted provisions during that same time period proscribing the employment of unauthorized aliens.4
Ten years after De Canas, Congress enacted the Immigration Reform and Control Act.5 IRCA makes it unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.6 IRCA also restricts the ability of States to combat employment of unauthorized workers. The Act expressly preempts any State or local law imposing civil or criminal sanctions other than through licensing and similar laws upon those who employ unauthorized aliens.7
In 1996 Congress created three experimental complements to the I-9 process as part of the Illegal Immigration Reform and Immigrant Responsibility Act.8 Only one of those programs, E-Verify, remains in operation today.9 In the absence of a prior violation of certain federal laws, IIRIRA prohibits the Secretary of Homeland Security from requiring any person or entity outside the Federal Government to participate in the E-Verify program.10
In 2007 Arizona enacted the Legal Arizona Workers Act which allows Arizona courts to suspend or revoke the licenses necessary to do business in the State if an employer knowingly or intentionally employs an unauthorized alien.11
The law also requires every employer after hiring an employee to verify the employment eligibility of the employee by using E-Verify.12
The Chamber of Commerce of the United States and business and civil rights organizations filed a pre-enforcement suit in federal court against those charged with administering the Arizona law.13 The Chamber argued that the Arizona law's provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly preempted by federal immigration law and that the mandatory use of E-Verify was impliedly preempted.14 The District Court held that Arizona's law was not preempted.15 The Court of Appeals affirmed the District Court in all respects.16 The Supreme Court granted certiorari.17
Whether the Legal Arizona Workers Act's provisions authorizing suspension or revocation of business licenses for employers that knowingly or intentionally employ unauthorized aliens are expressly preempted by the Immigration Reform and Control Act?18
No. The Arizona Legal Arizona Workers Act falls squarely within IRCA's savings clause for licensing laws because it instructs state courts to suspend or revoke business licenses of in-state employers that knowingly or intentionally employ unauthorized aliens.21 The statute's definition of license largely tracks the Administrative Procedure Act definition while encompassing articles of incorporation and similar authorizations that have clear counterparts in federal definitions.22 The Chamber's arguments for narrower limits based on legislative history or AWPA amendments find no support in the statutory text, which contains no requirement of prior federal adjudication or restriction to farm labor contractors.23
The licensing provisions are not expressly preempted.24
Related opinions on this issue
Joined by Justice Ginsburg
Justice Breyer dissents on the ground that the savings clause for licensing and similar laws must be read narrowly in light of IRCA's purposes of protecting against discrimination and erroneous sanctions.25 Arizona's broad definition of license to include virtually all business authorizations would permit states to eviscerate the preemption provision by turning any permission into a revocable license upon hiring an unauthorized alien.26 This reading is contrary to the statutory context and history limiting the exception to employment-related licensing schemes such as agricultural labor contractor laws.27
Justice Sotomayor dissents on the ground that the savings clause must be construed in light of IRCA's comprehensive federal scheme that centralizes enforcement and withholds work-authorization information from states.28 The clause preserves only state licensing sanctions imposed after a final federal determination of an IRCA violation rather than permitting states to adjudicate the underlying employment question themselves.29 Congress would not have created such a gaping hole in its uniform federal scheme through the undefined parenthetical phrase licensing and similar laws.30
Whether those licensing provisions are impliedly preempted by federal immigration law?31
A state law is impliedly preempted when it conflicts with federal law by standing as an obstacle to the accomplishment of Congress's full purposes and objectives or when Congress intended a federal system to be exclusive.32 No such preemption arises where Congress expressly preserved state authority and the state law closely tracks federal definitions, procedures, and standards without direct interference.33
No. Arizona's licensing law is not impliedly preempted because it implements the very sanctions Congress expressly allowed states to pursue through licensing laws.34 Arizona adopts the federal definition of unauthorized alien, requires verification solely through federal determinations under 8 U.S.C. §1373(c), and provides the same affirmative defenses and E-Verify presumptions as federal law.35 The state law does not enter uniquely federal fields or directly interfere with federal operations.36 Concerns about employer discrimination are addressed by parallel federal and state antidiscrimination laws and safe harbors that make compliance with both regimes the rational path.37
The licensing provisions are not impliedly preempted.38
Related opinions on this issue
Joined by Justice Ginsburg
Justice Breyer dissents on the ground that the Arizona statute's severe mandatory penalties, including permanent revocation of all business licenses for a second violation, radically skew the federal balance between deterring unauthorized employment and preventing discrimination.39 The state's enforcement procedures increase risks of erroneous prosecutions by relying on potentially flawed federal data without adequate discovery or defense mechanisms.40 These features create obstacles to Congress's objectives that the savings clause was never intended to authorize.41
Arizona's law subjects employers to the business death penalty for violations while leaving antidiscrimination protections unchanged, contrary to Congress's careful calibration of sanctions to avoid encouraging discrimination against foreign-looking workers.42
Whether the Act's requirement that all Arizona employers use the federal E-Verify system is impliedly preempted by federal law?43
A state requirement that employers use E-Verify is impliedly preempted if it obstructs the federal scheme's objectives.44 No preemption occurs where the federal statute imposes no express limit on state action, the state mandate imposes the same consequences as federal law, and the federal government has expanded and encouraged voluntary use of the system nationwide.45
No. Arizona's E-Verify mandate is not impliedly preempted because IIRIRA constrains only federal action by prohibiting the Secretary from requiring participation absent a prior violation.46 The state law requires no more than federal law already permits.47 The consequences of non-use are identical under both regimes.48 The federal government has repeatedly extended the program, made it available in all states, and expressly approved Arizona's approach as a permissible state use without overloading the system.49
The E-Verify requirement is not impliedly preempted.50
Related opinions on this issue
Joined by Justice Ginsburg
Justice Breyer dissents on the ground that by making mandatory what federal law deliberately left voluntary, Arizona's statute stands as an obstacle to Congress's objectives of testing the pilot program's accuracy, controlling costs, and avoiding burdens on employers and workers.51 Persistent error rates disproportionately affect foreign-origin individuals.52 There is an absence of any congressional determination that nationwide mandatory use is ready or desirable.53
Congress had strong reasons for insisting on the voluntary nature of the program given the pilot status and error risks.
Justice Sotomayor dissents on the ground that the Arizona Act directly regulates the relationship between the Federal Government and private parties by mandating use of a uniquely federal resource.54 The voluntary character of E-Verify reflects significant policy choices about cost, accuracy, and administrative capacity.55 Arizona's mandate thereby frustrates congressional objectives in a manner that states may not override.56
This case implicates the uniquely federal interest in managing use of a federal resource, unlike cases where state law regulates only private relationships.