Chamber of Commerce v. Whiting

  • June 26, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School  

    In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

    Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

    Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

    Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

  • December 23, 2011


    by Nicole Flatow

    A federal judge yesterday blocked parts of a South Carolina immigration law that was modeled after the controversial Arizona law the Supreme Court will review this term.

    Courts have blocked portions of similar immigration laws in Alabama, Arizona, Georgia, Indiana and Utah.

    “This is all really just a way station on the way to the Supreme Court’s ruling in the Arizona case,” Temple University law professor Peter J. Spiro told The New York Times. “The South Carolina ruling is important in the short term in putting the law on hold. But the Supreme Court will have the final say.”

    U.S. district Judge Richard M. Gergel blocked provisions that would require immigrants to carry their registration documents and make it a crime to harbor or transport illegal immigrants.

    In the opinion, he noted the “traditionally predominant role of the federal government in the field of immigration.”

    Santa Clara University law professor Pratheepan Gulasekaram explains the federal government’s dominance in the field of immigration law and policy in his ACS Issue Brief, “No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws.”

  • December 16, 2011

    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 professor, 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.

  • December 7, 2010
    Guest Post

    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.
    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

  • December 3, 2010

    The U.S. Supreme Court will hear oral arguments Wednesday in a case challenging an Arizona law that regulates the hiring of undocumented immigrants. The case raises the question: Should states be in the business of regulating immigration?

    ACS held a preview discussion about the case, Chamber of Commerce v. Whiting, during which panelists, while representing differing interests and points of view, came together on the view that a patchwork of state and local immigration laws is not the best U.S. policy.

    Business groups, including the name party, the Chamber of Commerce, are opposing the law alongside immigrants' rights and anti-discrimination organizations such as the American Civil Liberties Union, in an uncommon coalition that may prompt the justices to "come together in this case in a way that their instincts might not normally bring them together," said Sri Srinivasan, a partner at O'Melveny & Myers (pictured left).

    Even David Rittgers, a legal policy analyst at the CATO Institute who believes the U.S. Court of Appeals for the Ninth Circuit correctly decided the case as a matter of law, said he disagrees with the Arizona law as a matter of policy. He dispelled myths that "immigrants equal violent crime" and cited statistics that immigrant workers strengthen, not weaken, the U.S. economy.