by Jeremy Leaming
Just because the Supreme Court upheld Arizona’s law penalizing businesses for hiring undocumented workers, does not mean the state’s controversial, and exceedingly harsh, anti-immigrant law, SB 1070, is destined for approval by the justices.
In an ACS Issue Brief, Pratheepan Gulasekaram, a Santa Clara University law school pro
fessor, explains why the Supreme Court’s narrow opinion in Chamber of Commerce v. Whiting issued in May, will likely have no bearing on the justices’ consideration of SB 1070.
The law at the center of the Whiting opinion, the Legal Arizona Workers Act (LAWA), requires Arizona businesses to use the federal E-Verify system to ensure their employees are legally in the country, and penalizes those companies that hire undocumented workers. The 5-3 majority in Whiting concluded that Arizona’s E-Verify law was not preempted by the federal Immigration Reform and Control Act, which states that it trumps “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” undocumented workers. The majority concluded the licensing law, did not run afoul of the IRCA.
Professor Gulasekaram calls it is a mistake to conclude that Whiting means Arizona’s SB 1070, much of which was invalidated by the U.S. Court of Appeals for the Ninth Circuit, is likely to be found constitutional by the high court.
Instead Supreme Court precedent stands “for the proposition that state regulation of employment relationships between state employers and unlawfully present persons is permissible, if the federal government has not otherwise prohibited it,” Gulasekaram writes. That precedent, he continues, actually suggests it is most likely that he the high court will “strike down state immigration schemes like SB 1070.”
Although both Arizona laws are aimed at making life difficult for undocumented persons in the state, only the law dealing with the employer-employee relationship, LAWA, is not preempted by federal immigration law. Indeed, the professor writes, “federal law contemplates the existence of state business-licensing laws through a textual exception in federal immigration law itself. And, even with this express exception, Whiting is neither a unanimous nor far-reaching opinion. At most Whiting stands for the proposition that state business-licensing laws that regulate employers will not reflexively be struck down.”
But SB 1070, which requires state law enforcement officials to take on duties of federal immigration enforcement officials, is another story.