Supreme Court Report

Alien Resurrection: Justices Open the Door for States to Control Immigration Status

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Photo of Michael Hethmon by Gary Landsman.

In one respect, the U.S. Supreme Court issued an opinion so narrow it squeaked when it upheld an Arizona state law that can harshly punish employers who hire illegal immigrants. Indeed, Arizona business leaders say they expect little change in their state as a result of the May 26 decision in Chamber of Commerce v. Whiting.

But in another respect, the decision hinged on a single concept—the idea of license, which opened a gateway for other state and local governments to plunge into immigration regulation. The federal government nearly exclusively ruled immigration affairs for more than a century. (See “Raising Arizona,” ABA Journal, December 2010.)

State officials also greeted the decision as a signal the high court may be willing to consider a more contentious Arizona immigration law that allows police to stop and question people they suspect of entering the state illegally.

But the court dropped no hints as to the fate of the second law, which was challenged in United States v. Arizona. Opponents say the law allows racial profiling of Mexican-Americans in the border state. Experts doubt the justices will accept it because it rests on shakier constitutional ground. “I think they were very careful not to send any cue beyond Whiting,” says Temple University law professor Peter J. Spiro.

Nevertheless, lawyers and experts on both sides agree the court spoke clearly just by deciding Whiting in the first place. “The argument that this is exclusively a federal power is off the table,” Spiro says.


At least eight other states and countless local governments have enacted employer-sanction laws. Arizona’s law, dubbed the “business death penalty,” is far and away the toughest, even allowing for dissolutions of corporate charters for repeat offenders. Advocacy groups say they expect an explosion of more such laws in the coming months.

“We think this has definitely given a green light to states, municipalities and counties,” says Michael M. Hethmon, general counsel for the Immigration Reform Law Institute in Washington, D.C. The organization represents clients in court and advises local governments on how to draft effective immigration legislation that steers clear of federal pre-emption under the Constitution’s supremacy clause, which can throw such measures on the scrap heap.

In writing a law that will withstand constitutional scrutiny, state and local officials first must realize they can’t change federal law, so they must use it, says Hethmon, whose organization claims credit for Arizona’s approach. Arizona did just what the institute suggests, largely by accepting federal terminology and determinations of individual eligibility to work in the U.S. before applying its own law.

“The most important thing for them to do is to scrupulously adhere to the federal law,” Hethmon says.

The Arizona approach swayed Chief Justice John G. Roberts Jr. in Whiting. Writing for the court’s conservative majority, Roberts observed that legislators craftily drafted the 2007 Legal Arizona Workers Act so it nuzzled right up to the edge of federal immigration law without crossing the line and triggering a pre-emption argument that would have killed it.

Arizona lawmakers were able to pull off a win by threading a needle and taking advantage of language in the 1986 federal Immigration Reform and Control Act. Though the act expressly forbids state and local laws that civilly or criminally punish employers for hiring illegal aliens, it still parenthetically allows them to act, “through licensing and similar laws.” Congress didn’t define licensing, though conventional wisdom and the dissenting justices understood it to apply primarily to agencies that recruit and hire farmworkers.

So Arizona shopped around until it found a definition for licensing in an unrelated federal statute, and it wound up with a sweeping description covering “any agency permit, certificate, approval, registration, charter or similar form of authorization” required to do business in the state. Covered documents include articles of incorporation, partnership certificates and grants of authority to out-of-state companies to operate in Arizona.

The majority praised Arizona for going the “extra mile” to ensure the state law didn’t conflict with the federal version. The court also upheld a requirement that employers use a federal electronic database to determine individual work eligibility. Employers who use the system earn a safe harbor from prosecution.

“Arizona has taken the route least likely to cause tension with federal law,” wrote Roberts, joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor were in dissent, and Justice Elena Kagan recused herself.


Today the immigration reform law institute wants to know how far the law will stretch for state and local governments.

“Now they can be much more comfortable,” says Hethmon. “Inevitably, we’re going to see states wade into other areas.”

Other fields Whiting could influence include education, medical care and eligibility for public benefits. In June, the Supreme Court vacated Lozano v. City of Hazleton, a case involving an ordinance the institute drafted and defended for the Pennsylvania city. Last September, the Philadelphia-based 3rd U.S. Circuit Court of Appeals held federal law pre-empted the ordinance, which punished landlords who rented to illegal aliens, as well as employers. The Supreme Court ordered the 3rd Circuit to reconsider in light of Whiting.

But though the Arizona law purports to follow the feds to the letter, Whiting dissenters Sotomayor and Breyer didn’t show much faith in the state prosecutors and courts that must enforce it. For example, federal documents the state requires employers to check may show an individual is in the state legally, but may say nothing about whether that person is authorized to work.

“As a result, in many cases state decisions—made by prosecutors and courts with no or little experience in federal immigration law—will rest on less-than-complete or inaccurate information, creating enforcement risks not present in the federal system,” Sotomayor wrote.

Despite the defeat in the Supreme Court, no one was leaping from the windows at the Arizona Chamber of Commerce and Industry. That’s partly because two courts denied efforts to suspend it, meaning businesses in Arizona had to deal with it for three years as it wound its way to the high court.

“Considering we’ve been living under the law for so long now, we have adapted to the new standards,” says chamber spokesman Garrick Taylor. “Employers will continue hiring as they have been.”

The time window enabled the chamber to educate its members on how to comply with the law and urge its views on how to apply it to state prosecutors. Enforcement has been almost nil. “I think maybe we have three cases,” Taylor says.

He acknowledges that some small businesses may find compliance burdensome. Still, though the chamber opposed the law, Taylor says business has better things to do than mix it up with authorities over hiring practices.

“If there are people flouting the law, then throw the book at them,” Taylor says. “Legitimate businesses have no interest in playing ‘hide the ball’ with the federal government.”

But the flood of new legislation Hethmon predicts already has begun to run into barriers in some places. An unlikely alliance of business interests and civil rights groups, concerned with racial discrimination, has proven an effective lobby against proposed homegrown state immigration laws. As the state legislative season wound down in early May, those interests received credit for the demise of employment-related immigration proposals in Florida and Texas. The proposals also contained criminal aspects in the same vein as the more controversial Arizona profiling measure.

“In statehouses, they’re pretty good at watering down these laws,” says Temple’s Spiro.

But for now, in the absence of congressional action, the states and the courts likely will run immigration law and policy for the foreseeable future. As the 2012 elections approach, few see Congress attempting to regain control in the meantime.

“Well, maybe this will light a fire under Congress to pass meaningful immigration reform,” Taylor says. “But I’m not going to bet the mortgage on that.”

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