Supreme Court Upholds AZ Undocumented Alien Employer Sanctions Measure

by Peter Spiro

Opinion here in Chamber of Commerce v. Whiting .  The Court green-lights state use of licensing laws as a tool of immigration enforcement, consistent with the 1986 Immigration Reform and Control Act.  It also upheld Arizona’s imposition of the e-Verify system as a mandatory requirement on employers, where Congress had deemed the system voluntary.

The decision is important in its own right: business licensing is a pretty significant tool with which to advance a restrictionist agenda.  It will no doubt embolden anti-immigration activists to ramp up their efforts in state capitals (which is not to say they’ll be successful — business interests have typically been successful in defeating these measures in state legislatures).

But the Court’s reasoning is narrow — pretty much an exercise in statutory interpretation.  No broad pronouncements here on the constitutionally appropriate role of states in immigration enforcement.  At the same time, the Court is now obviously tolerating some state measures that implicate immigration.  The decision might even incrementally point to the further normalization of immigration law from a constitutional perspective, here applying ordinary standards of statutory interpretation and preemption doctrine.  And it’s consistent with the federalism agenda of the Court’s conservative wing.

That doesn’t mean that AZ’s far more controversial SB1070 necessarily gets a pass (the question everyone’s asking), which implicates other federal measures and pushes the envelope in a much more dramatic way.  The Court will probably have to confront SB1070 after it works it way back up the judicial pipeline after another round in the lower courts.

Comments are closed.