The Supreme Court has upheld Arizona’s 2007 law that bars business licenses to employers with illegal alien workers and requires employers to check the work-eligibility status of new employees. This victory represents a home run for federalism.
The high court ruled, 5 to 3, that the Legal Arizona Workers Act, or LAWA, doesn’t run afoul of a federal preemption contained in the 1986 Immigration Reform and Control Act. Rather, Arizona’s law is carefully designed to fit clearly within an explicit exception and to track with federal law.
LAWA provides for suspension or revocation of business licenses when an employer knowingly or intentionally employs an “unauthorized alien.” State or local authorities respond to a complaint about an unscrupulous employer and check allegedly unlawful workers’ immigration status with federal authorities.
A violation leads to illegal aliens’ termination from their jobs and three years’ probation for the business. In a second violation, the state revokes the business’s license. The law also calls for every employer in the state to verify that new hires may legally work in the United States. They do this using the federal E-Verify program.
The U.S. Constitution is premised on each state retaining broad powers. States hold jurisdiction over vast swaths of subjects. They range from licensing of businesses to running schools to policing vehicles and crime—anything states didn’t expressly give to the federal government that the Constitution enumerates.
States hold broad police powers that aren’t defined because they cover anything not specifically assigned to the federal government.
The 10th Amendment reiterates the principle of federalism. Federalism and limited, effective government go hand in hand. Remember Thomas Jefferson’s adage that government closest to the people governs best.
While immigration per se rests within Congress’ sole jurisdiction, addressing the numerous matters that happen to be associated with immigration in states and locally remain fair game.
The 1986 IRCA law, which granted amnesty to 3 million illegal aliens, put in place a leaky “employer sanctions” regime. This includes the I-9 form you fill out when you start a job and show certain IDs.
IRCA outlaws employment of illegal aliens. Here, that law specifically preempts state or local sanctions on businesses or recruiters of unauthorized workers. But the preemption excepts state or local anti-illegal employment laws designed to fight illegal alien employment “through licensing and similar laws.”
This exemplifies the dance of federalism.
IRCA’s preemption and exception were the battleground in the lawsuit, U.S. Chamber of Commerce v. Whiting.
The open-borders coalition that brought the lawsuit got stomped and sent to the locker room. The U.S. Chamber of Commerce, the starting pitcher that organized the suit, picks up the loss—and deservedly so. The court roundly rejected the Chamber’s bogus claims.
The court said, “The Chamber’s argument that the Arizona law is not a ‘licensing’ law because it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact or logic.”
“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,” said the court. “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.’ . . . That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of instate employers that employ unauthorized aliens.”
The victory in U.S. Chamber of Commerce v. Whiting bodes well for other states’ E-Verify laws. Thirteen states require at least some businesses to confirm workers’ eligibility for U.S. employment.
The key to successfully exercising federalism in this area lies in corresponding with federal immigration statutes.
The court smiled on Arizona’s legislating in that manner: “Arizona went the extra mile in ensuring that its law closely tracks IRCA’s provisions in all material respects.”
The court noted that in 1996, Congress sought to make it easier for law-abiding employers to hire only legal workers. The E-Verify program enables employers to check information from new workers’ I-9s against federal records.
The Internet-based E-Verify system instantly confirms the vast majority of new employees’ work eligibility. This gives businesses peace of mind, saves them from investing time and money in training illegal workers, and protects American workers from unfair, illegal job competition.
It also gives participating employers legal protection for relying on E-Verify’s determination about any given worker.
Nonconfirmations can be cleared up with the government. Many cases involve women who haven’t changed their maiden names to their married names with Social Security.
Of the other nonconfirmations, nearly all that the system catches are illegal aliens. That is, E-Verify did its job.
The Supreme Court got it right in this case. Other states considering E-Verify laws should view this as the third-base coach waving them toward home plate.