Federalism

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By Jennifer Chang Newell, a staff attorney for the ACLU Immigrants' Rights Project. Chang Newell recently participated in an ACS panel discussion on Chamber of Commerce v. Whiting, available here.

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Oral arguments in the first legal challenge to the recent wave of state and local anti-immigrant laws to reach the Supreme Court will be held this Wednesday. The case, Chamber of Commerce v. Whiting, involves a challenge to an Arizona state law that sanctions and penalizes businesses whom the state determines has employed workers not lawfully authorized to work in the United States. The challenged law imposes a potential business "death penalty" for employers found to have hired unauthorized workers and requires all Arizona employers to participate in an electronic employment verification system, e-Verify, that is voluntary under federal law. The case was brought by a coalition that includes the United States Chamber of Commerce, the American Civil Liberties Union, and other civil rights and business groups. The coalition asserts that the Arizona law conflicts with federal immigration law and violates the Supremacy Clause of the U.S. Constitution. The Acting Solicitor General of the United States, which submitted a key amicus curiae brief in support of the coalition's position, will also be arguing.

The Backdrop: An Epidemic of State and Local Anti-Immigrant Laws Across the Country

The challenge to the Arizona employer sanctions law provides the Supreme Court with its first opportunity to weigh in on the trend in recent years of states and localities fashioning their own local immigration laws. Over the past three years, hostility toward immigrants coupled with apparent frustration with the lack of federal immigration reform have inspired states and cities to propose and enact laws that attempt to make life difficult for "illegal aliens" by imposing a patchwork of local penalties. Hundreds of local anti-immigrant measures have been introduced across the country, including the other well-known Arizona anti-immigrant law, SB 1070 (currently the subject of a pending Ninth Circuit appeal). In addition to creating divergent employer sanctions schemes and mandating participation in the voluntary federal e-Verify program, these local immigration efforts have included prohibitions and penalties for the renting of apartments to allegedly unauthorized immigrants and even criminal laws that would prosecute immigrants or family members, friends, employers, and others who allegedly associate with undocumented immigrants.

Where enacted, these laws have created a climate of hostility and racial profiling against immigrants, increased fear in immigrant communities, and caused immigrant families to flee to more welcoming communities. The harsh penalties in these laws have made employers and landlords wary of dealing with anyone who may look or sound foreign. In response to these many harms, the ACLU and other groups have gone to court to challenge these laws in numerous locations across the United States. Most notably, in September the Third Circuit struck down Hazleton, Pennsylvania's anti-immigrant employment and housing law, diverging with the Ninth Circuit's ruling below on the Arizona employer sanctions law in Whiting; a certiorari petition may be filed in the Hazleton case as well.

The Issues before the Court in Whiting

Last week, CQ HealthBeat News noted that the ascendance of Republicans in the states would likely mean a burgeoning of the forces trying to take down the landmark health care reform law, the Affordable Care Act. Recently, The Washington Post reported, "Many incoming Republican governors made their antipathy to the law a plank of their campaign. Tennessee Gov. -elect Bill Haslam denounced it as ‘an intolerable expansion of federal government power.' Wyoming Gov. -elect Matt Mead promised to join 21 states contesting the constitutionality in federal courts."

The festering political opposition to the health care law, which includes calls from newly elected members to the House of Representatives to block funding for the law, prompted TheAtlanic.com editor Derek Thompson to ask, "Is health care reform in danger?" Thompson directs a host of questions to Andrew Webber, head of the National Business Coalition on Health, "a national, not-for-profit organization that represents public and private sector employers," about the law and its solvency.

Webber, who "represents 53 employer-based health coalitions around the country," told the website that he likes the law's "delivery system reforms," and that if "implemented right, this could be transformational."

Webber concluded by saying that it was "unfortunate" that the health care reform law occurred "during a recession," and that the "whole thing can crumble. But I don't see it. On the delivery reform issues, we had to do something. I'm hoping that, even if we start to peel back some of the insurance regulation to protect the employer-based system, we can all agree that there are good ideas here you should embrace whether you're as Republican or Democrat."

Regarding the efforts by newly elected Republicans to the House of Representatives to tie up funding for portions of the law, The New York Times reports that Rep. Eric Cantor, part of the House Republican leadership, said it was his "intention to begin repealing [the health care reform law] piece by piece, blocking funding for its implementation and blocking the issuance of the regulations necessary to implement it."