U.S. Supreme Court

Supreme Court Upholds Arizona Immigration Law; Chief Justice Is PC with Terminology


The U.S. Supreme Court has upheld an Arizona law penalizing businesses that hire undocumented immigrants by revoking or suspending their business licenses.

The majority opinion (PDF) by Chief Justice John G. Roberts Jr. found the Arizona legislation is not pre-empted by federal immigration law.

The Arizona law revokes or suspends the licenses of businesses that knowingly or intentionally hire unauthorized immigrants, and requires employers to use a federal verification system to confirm workers are eligible for hire.

A word search of Roberts’ majority opinion reveals he did not use the term “illegal immigrants” or “illegal aliens,” except when quoting other sources. Instead he opted for the more politically correct terms “unauthorized aliens” and “unauthorized workers.” At oral arguments, word choice became something of an issue when Justice Sonia Sotomayor was the only justice who shunned the “illegal immigrants” terminology, referring instead to “undocumented immigrants.”

The pre-emption issue concerns a provision of the federal Immigration Reform and Control Act. The law pre-empts states from imposing civil or criminal sanctions on those who employ unauthorized aliens, “other than through licensing and similar laws.” The Chamber of Commerce and the United States had argued the Arizona law is not a “license” law because it revokes licenses and does not grant them. The argument “is contrary to common sense,” Roberts wrote in a portion of his opinion joined by four other justices.

Roberts also found no implied pre-emption of the licensing provisions in a section of his opinion joined by three justices, and no implied pre-emption of the Arizona requirement for employers to use the federal E-Verify system.

Justice Stephen G. Breyer dissented in an opinion joined by Justice Ruth Bader Ginsburg. Justice Sonia Sotomayor filed a separate dissent.

Roberts addressed the dissenters’ differing arguments on the meaning of the federal licensing language in a footnote. “It should not be surprising that the two dissents have sharply different views on how to read the statute,” Roberts wrote. “That is the sort of thing that can happen when statutory analysis is so untethered from the text.”

Justice Elena Kagan did not participate in the case, Chamber of Commerce v. Whiting.

SCOTUSblog and the Associated Press also have coverage.

Prior coverage:

ABAJournal.com: “Is It ‘Illegal’ or ‘Undocumented’ Immigrants? Sotomayor Opts for the Latter”

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