In a highly anticipated decision that concludes one of the most significant immigration legal battles of recent years, the U.S. Supreme Court upheld the Legal Arizona Workers Act.
The act, which took effect in January 2008, is best known for allowing the state of Arizona to suspend or revoke the business licenses of employers who are found to have knowingly hired unauthorized workers. The law also requires all employers statewide to use the federal government's E-Verify program to confirm the work eligibility of their new hires.
The Supreme Court's decision is its first in over three decades to deal directly with the authority of states to regulate the employment of immigrants. The decision was also the highest court's first opportunity to rule on the legality of one of a spate of recent immigration enforcement laws enacted by states following Congress's failure to pass comprehensive immigration reform in 2007.
As a result, the ruling sparked intense commentary and debate among lawmakers, legal scholars, and immigrant advocates. While nearly all observers agree on the overall importance of Chamber of Commerce v. Whiting, there are differing opinions on the implications of the decision for other recently enacted state immigration enforcement measures.
Supporters of such measures, including Arizona Governor Jan Brewer and Kansas Secretary of State Kris Kobach, a major architect of the Arizona-type laws, hailed the new decision as a green light for other states to follow Arizona's lead and enact their own state immigration enforcement legislation.
Other commentators, however, have noted that the Supreme Court's decision is narrowly tailored to the specific statutory language of the Legal Arizona Workers Act. Thus, the decision is of little consequence for state laws that go beyond the narrow scope of the 2007 Arizona law.
The Road to the Supreme Court
Almost from its inception, the Legal Arizona Workers Act was highly controversial, having been labeled in 2007 by supporters and opponents alike as one of the toughest immigration enforcement measures to be passed by any state.
Just one week after it was signed, a coalition of immigrant-rights and business groups, including the U.S. Chamber of Commerce, filed a lawsuit to enjoin the act. These groups argued primarily that the new act was preempted by provisions of two federal laws: the 1986 Immigration Reform and Control Act (IRCA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). They also claimed that the act violated the Supremacy Clause and the Fourteenth Amendment to the U.S. Constitution.
In February 2008, the federal district court in Arizona dismissed the lawsuit challenging the Legal Arizona Workers Act, and a year later the 9th U.S. Circuit Court of Appeals affirmed that decision. The Whiting case was an appeal from that ruling.
Writing for the court's 5-3 majority, Chief Justice John Roberts ruled that, given the statutory language of the relevant federal laws, the Arizona law is not preempted. While IRCA expressly preempts states and localities from imposing their own sanctions on employers who knowingly hire unauthorized workers, it provides an exception for "licensing and similar laws." Concluding that the portion of the Arizona law that allows the state to suspend or revoke business licenses was a "licensing law," Chief Justice Roberts ruled that the law falls within the confines of that exception.
With respect to the mandatory E-Verify provisions of the Arizona law, Chief Justice Roberts took a similar approach. Although IIRIRA prohibits the federal government from mandating participation in E-Verify, nothing in the law prevents a state from requiring participation from its employers. Thus the act, he wrote, is not preempted by IIRIRA. The majority opinion also emphasized that nothing in Arizona's E-Verify law conflicted with the federal government's overarching E-Verify scheme.
In his dissent, Justice Stephen Breyer wrote that Congress could not have intended for the word "licensing" in IRCA to be read so broadly as to include any kind of license that the state issues. Rather, he argued, the word should be interpreted in the context of the statute's language. Justice Breyer also emphasized that both the licensing and E-Verify provisions of the act upset the delicate "balancing" of considerations that Congress sought to accomplish through IRCA: balancing the need to prevent the hiring of unauthorized immigrants, on the one hand, with the need to prevent employer discrimination of workers who looked or sounded "foreign," on the other.
Future Implications of the "Whiting" Ruling
The most immediate impact of the Whiting ruling is clearly on states with mandatory E-Verify laws already in place. To date, four states other than Arizona (Alabama, Georgia, Mississippi, and Utah) have passed laws requiring all employers to participate in E-Verify, and an additional 11 states require some subgroup of employers (such as those receiving public contracts) to use E-Verify.
Whiting also bodes well for states or localities that have passed laws allowing for the suspension or revocation of business licenses of employers who have knowingly hired unauthorized immigrants. Just days after the Supreme Court issued its opinion in Whiting, it vacated a 2010 decision by the 3rd U.S. Circuit Court of Appeals that declared unconstitutional an ordinance allowing the city of Hazleton, Pennsylvania to suspend or revoke the business licenses of employers found to have knowingly hired unauthorized immigrants. The Supreme Court directed the appeals court to reconsider the case in light of Whiting.
The ruling in Whiting will also perhaps spur Arizona and other states to take steps to more rigorously enforce their current laws. Although the Legal Arizona Workers Act has been on the books since 2007, the provisions of the law have rarely been enforced. As of fall 2010, only three enforcement actions under the act had been pursued against Arizona employers, and in July 2010 The Arizona Republic reported that only about one-third of the state's 100,000 employers had signed up for the E-Verify program.
Less clear, however, is whether the Whiting decision will embolden other state and federal lawmakers to push for laws that mirror the provisions of the Legal Arizona Workers Act. While some legislators have indicated in the weeks since the ruling that they will pursue similar laws in their own states, it is not necessarily certain that the majority of states will follow suit and ultimately pass such laws.
Most states will likely wait to see how full implementation of the Legal Arizona Workers Act plays out in Arizona before deciding whether to enact their own mandatory E-Verify or immigration licensing laws. Because Arizona has only tentatively enforced the provisions of the Legal Arizona Workers Act thus far, it is unclear what consequences full enforcement of the law will have on the state's economy and regulatory costs. A departure of businesses from the state or dramatic increases in costs could lead other states to rethink efforts to enact similar laws.
The decision in Whiting has also generated considerable interest in its implications for the future of another Arizona immigration law, the more controversial SB 1070. That law, which the state legislature passed in April 2010, allows state and local law enforcement officials to question anyone who is stopped by the police about their immigration status, so long as a police officer has a "reasonable suspicion" that the stopped individual is an unauthorized immigrant.
While some supporters of state-level immigration action have argued that the ruling in Whiting indicates that the court will also be inclined to uphold the constitutionality of SB 1070, most analysts agree that the Whiting decision will have little effect on the outcome of lawsuits surrounding SB 1070-like laws.
For one, the ruling in Whiting involved the narrow issue of the interpretation of statutory language that allowed states and localities to have some role in the licensing of businesses. There is no corresponding language in any federal statute allowing state law enforcement agents to directly enforce federal immigration law. Whiting also did not deal with the broader issues of preemption raised by SB 1070-type laws.
Additionally, while the Legal Arizona Workers Act case arrived at the Supreme Court after both the Arizona district court and the 9th Circuit had upheld the law, in the current SB 1070 case, the opposite is true. Last summer, a district court judge in Arizona ruled that several portions of SB 1070 were likely unconstitutional and preempted by federal law, and enjoined various provisions of the law from taking effect. The 9th Circuit then affirmed that decision in April of 2011.
Policy Beat in Brief
New York Suspends and Massachusetts Declines Participatation in Secure Communities. Adding to the controversy surrounding one of the Obama administration's key immigration enforcement programs, Governor Andrew Cuomo announced he would suspend New York's participation in Secure Communities pending the issuance of a new report on the program by the Department of Homeland Security (DHS). At the same time, Massachusetts Governor Deval Patrick announced he would not sign his state up to participate in Secure Communities.
The program allows Immigration and Customs Enforcement (ICE) officers to check the fingerprints of arrested individuals against various immigration databases while the FBI screens them against its main criminal database.
Prior to the New York and Massachusetts decisions on Secure Communities, Illinois became the first state to officially pull out of the program when Governor Pat Quinn sent a letter to ICE in May announcing that his state was terminating its participation. Last year, state officials in Washington state also announced that that state would opt not to participate in Secure Communities. In all four states, critics of Secure Communities and legislators lobbying for the program's termination have argued that, contrary to the program's stated mission, it primarily removes low-level offenders and non-criminals.
It remains unclear, however, whether states may truly "opt out" of participation in Secure Communities. Federal officials have maintained that even in jurisdictions that choose not to participate in the program, such as Illinois and Massachusetts, the FBI will continue to share its fingerprint information with ICE. What's more, ICE has continued to negotiate Secure Communities partnerships with individual localities in states that have announced that they will not be participating in the program.
Diversity Visa Results Voided. Due to errors in the electronic system used to select the coming fiscal year's (FY) eligible applicants for the diversity visa program, the U.S. Department of State (DOS) announced that it was voiding the initial results of the lottery for FY 2012 and redoing the drawing, despite tens of thousands of entrants having already celebrated their wins.
The diversity visa program, which Congress authorized through the Immigration Act of 1990, awards up to 55,000 immigrant visas each fiscal year to foreign nationals from countries that have traditionally had low levels of immigration to the United States. For the FY 2012 program, a record number of individuals — 14.8 million people — submitted applications.
Extension of Haitian TPS. In a significant policy shift, U.S. Citizenship and Immigration Services (USCIS) announced that it would extend Haitian Temporary Protected Status (TPS) for 18 months and that it would allow Haitians who had been continuously present in the United States since January 12, 2011 to apply for such status. Prior to the policy change, Haitian TPS applicants had to prove that they were living in the United States on January 12, 2010 — the day that a magnitude 7.0 earthquake hit Haiti.
Under the Immigration Act of 1990, the United States may grant TPS, which includes work authorization and protection against deportation, to qualified foreign nationals residing in the United States who the U.S. government determines are temporarily unable to return to their home countries because of war or a natural disaster.
Supreme Court Leaves California In-State Tuition Bill in Place. The U.S. Supreme Court declined to accept for review an appeal from the November 2010 decision of the California Supreme Court upholding the constitutionality of a state law that allows certain unauthorized immigrant students to pay in-state tuition at state colleges. Under the 2001 California law, unauthorized immigrant students may be allowed to pay in-state tuition if they have attended three years of high school in California, graduated, and signed an affidavit stating that they have either applied for legal status in the United States or that they will do so as soon as they are eligible.
Backlog at EOIR Mounts. The Executive Office of Immigration Review (EOIR) expects to receive over 400,000 new immigrant removal cases in FY 2011, an increase of roughly 14 percent over FY 2006 (351,051), according to testimony before the Senate Judiciary Committee by Director of EOIR Juan Osuna. Additionally, at the end of FY 2010, EOIR courts had 262,622 individual immigration cases pending, an increase of roughly 40,000 cases over the number of cases pending at the end of FY 2009. Most analysts believe one result of the rising EOIR caseload has been significant delays in the adjudication of cases.
National Guard to Stay at the Border. The Obama administration announced on May 31 its decision to keep the National Guard deployed along the southwest border this summer, though the Guard's mission was originally scheduled to end by June 30.
Approximately 1,200 National Guardsmen have been deployed to the southwest border since May 2010 in order to assist U.S. Customs and Border Protection (CBP) in stopping unauthorized immigrants and drug smugglers, and to prevent "spillover" violence from Mexico. Since then, several border governors, state legislators, and members of Congress have argued for extending the Guard's stay at the border because of the critical role they believe the units have played in maintaining border security.
State and Local Policy Beat in Brief
New Immigration Enforcement Laws in Alabama, Indiana. Alabama Governor Robert Bentley signed into law a new immigration enforcement bill that is partially modeled after (but more sweeping) than the controversial Arizona law SB 1070. The bill, HB 56, contains a number of measures including: requiring law enforcement officers to inquire into the immigration status of anyone stopped by the police if an officer has a reasonable suspicion that the person is an unauthorized immigrant; barring unauthorized immigrants from attending public colleges in Alabama; requiring public K-12 schools to determine the citizenship and immigration status of all students and report their findings to state officials; making it a felony to transport an unauthorized immigrant; and requiring employers to use the E-Verfiy program.
Meanwhile, Indiana Governor Mitch Daniels signed into law SB 590, which, among other provisions, requires all state agencies and public contractors to enroll in and use the federal E-Verify system in order to confirm that new hires are authorized to work, and prohibits the state from awarding business grants of more than $1,000 to businesses that do not use E-Verify.
Lawsuits Filed to Halt Implementation of Indiana and Georgia Immigration Bills. The American Civil Liberties Union (ACLU) and the National Immigration Law Center have filed lawsuits seeking to stop recently enacted immigration enforcement bills in Indiana and Georgia from taking effect. According to the ACLU, the new bills undermine the federal government's authority in the realm of immigration and conflict with the Supremacy Clause of the U.S. Constitution. Both laws were signed within the last six weeks — Georgia Governor Nathan Deal signed HB 87 on May 13, and Indiana Governor Mitch Daniels signed SB 590 on May 10.
Maryland Governor Signs In-State Tuition Bill. Maryland Governor Martin O'Malley signed a new law that will allow certain unauthorized immigrant students in Maryland to pay in-state tuition at state colleges and universities. To qualify under the new law, students must demonstrate that they have attended three years of a Maryland high school, have graduated, and that their parents filed tax returns while they were in high school and will continue to do so while they attend college. Students must also first earn an associate's degree or complete 60 credits at a community college before transferring to a state college or university.
Illinois DREAM Act. Both houses of the Illinois state legislature passed a novel measure that would establish a private scholarship fund for the children of immigrants seeking to attend college. The bill, known as the "Illinois DREAM Act," would also create a program whereby immigrant parents could pool savings with money from the fund and invest that money toward their children's college educations. The bill will now go to Governor Pat Quinn for his signature.