Last week’s Supreme Court decision upholding Arizona’s law against employing illegal immigrants, Chamber of Commerce of the United States v. Whiting, _S.Ct._, 2011 WL 2039365 (May 26, 2011), discredits several arguments made by business and immigrant groups which benefit from illegal immigration. Most importantly, the Court decided that prohibiting the employment of illegal immigrants is not the sole responsibility of the federal government. This has been clear to most lawyers and public officials since the enactment of the Immigration Reform and Control Act (IRCA) in 1986. IRCA made it illegal to hire illegal immigrants for the firs time. It also preempts (prohibits) states and local governments from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ… unauthorized [workers]” (illegal immigrants). 8 U.S.C. sec. 1324a(h)(2)(my emphasis added). So the issue the Court decided was whether that exception in the parenthesis allowed Arizona to punish employers who violate IRCA by suspending or revoking their business licenses, which IRCA does not do. The Court decided that the Arizona  could do so.

Arizona’s law is very carefully written so as not to impose stricter requirements on hiring than IRCA provides, such as making its own determination as to who is in the country illegally or punishing the illegal workers rather than the employers.  Rather, the law tracks IRCA’s definitions of “unauthorized” and requires the State to ask the federal government (the Department of Homeland Security, “DHS”) to confirm whether potential employees are allowed to work. IRCA provides for such inquiries, and that is some support for the the view that in enacting IRCA, Congress envisioned some role for state and local governments in the area of dealing with illegal immigrants.

Arizona’s law also requires that all employers enroll in the federal government’s E-Verify program, an on-line verification that employee’s social security and/or alien registration number (issued to legal immigrants), match the names of the persons to whom the U.S. government has issued those numbers. Theoretically, this would make it extremely difficult for an illegal immigrant who does not have a valid government-issued social security number to be verified for employment. Fake social security numbers would be rejected. And social security numbers issued to another person would not be approved unless the illegal worker was using that other person’s name as well. (Unfortunately, E-Verify does not have electronic photos to enable employers to compare against the person in front of them seeking the job.) Employers of illegal immigrants are justifiably afraid of E-Verify, for it might be successful in identifying illegal immigrants. The Chamber of Commerce seems to be a tool of these employers, quick to challenge all state laws which try combating the employment of illegal workers. (It would be nice to see some members of the Chamber oppose its incessant litigation against these laws.) Significantly, the Supreme Court rejected the Chamber’s argument that E-Verify is an imperfect system, and for that reason should not be made mandatory. It noted the irony of DHS’s efforts to promote use of E-Verify, even through radio and print ads. If the system was that flawed, Chief Justice Roberts reasoned, then the government would not be encouraging its use for the last decade and Congress would not have reauthorized it several times.

The Arizona law allows anyone to file a complaint against an employer who he or she believes has employed an illegal immigrant. The State is required to investigate all such complaints which will require the employer to produce its E-Verifications for each employee. The State can also ask DHS to tell it whether particular employees are authorized for employment if there is any doubt or if the employer has failed to use E-Verify, in violation of the State’s law. A first offense results in the suspension of the employer’s business license for a few weeks. But a second offense is punished by termination of the license, meaning the employer must close that place of business. (So a fast-food chain, for example, would not have to close other locations if one lost its license.) The Chamber of Commerce called this a death penalty, and given the ferocity of its challenge of the law all the way up to the Supreme Court, it must realize that some employers are going to be shut down. This will, of course, require the State to enthusiastically enforce the law, which as we know, is not the case with IRCA.

The Supreme Court’s conclusion that Arizona’s program of suspending the business licenses of firms that hire illegal immigrants is allowed under IRCA is contrary to how the Third Circuit Court of Appeals ruled on a smilar law enacted by the City of Hazelton, Pennsylvania.  The Third Circuit concluded, “We therefore cannot fathom that Congress intended to tolerate the ‘supplementing’ of its carefully crafted system [IRCA]with independent state and local systems, which by their mere existence drastically increase burdens on employers.”  Lozano v. City of Hazelton,620 F.3d 170, 213 (3d Cir. 2010).  The Court was particularly troubled that Hazelton’s ordinance did not give an employer a “hearing” before suspension of its business license.  The Arizona law does not provide much of a hearing either.  The law requires Arizona courts  to accept DHS”s conclusions as to whether a worker is authorized for employment.  So an employer will not be able to argue that it believed the person was legally authorized for employment under IRCA if DHS says otherwise.  In legalese this is called a strict liability offense.  The accused cannot present a defense based on misunderstanding facts or innocent motive.

The Hazelton law went further than the Arizona law by prohibiting landlords from renting housing to illegal immigrants.  The Supreme Court’s decision did not address such a licensing law.  Yesterday the Court vacated the Third Circuit’s City of Hazelton opinion and ordered it to rehear the case in light of the Whiting opinion.  I predict that Hazelton’s law as to the employment of illegal immigrants will now be upheld.  It is almost indistinguishable from the Arizona law.  But the bar on landlords is harder to predict.  Yes, it’s a licensing law (Hazelton requires landlords to be licensed by the City.)  But IRCA preempts state and local govertnments from encting laws regulating the employment of  illegal immigrants except through “licensing and similar laws.”  Does this mean state and local governments can enact laws punishing landlords because renting housing has nothing to do with employment, the focus of IRCA?  Or does IRCA’s express preemption clause bar state and local governments from enacting any law dealing with illegal immigrants except as to employment?  There is no clear answer.  Good lawyers can take either side in the debate, and judges will have much discretion in interpreting the various rules of interpreting preemption provisions which have evolved over the last several decades.  Kris Kobach, a law professor at the University of Missouri, is an expert in his area of the law, and represented Hazelton.  The Chamber of Commerce will undoubtedly bring in its strongest legal talent to argue for preemption of the landlord ordinance. 

In the interim other federal courts will soon be weighing in, as Alabama has just enacted the toughest anti-illegal immigrant law in the country, going well beyond the Arizona law just upheld.  This is uncharted legal territory, and I will keep updating as new decisions are issued.