On May 26, 2011, the Supreme Court decided Chamber of Commerce of the United States v. Whiting. In a 5-3 decision, the Court upheld the Legal Arizona Workers Act, finding that it was not preempted by federal immigration laws.
Chief Justice Roberts wrote the majority opinion. Expressing his agreement with the Ninth Circuit Court of Appeals, he wrote that, while the Immigration Reform and Control Act does not permit states to impose “civil or criminal sanctions” on those who employ unauthorized aliens, the Arizona law deals with revoking the employer’s business license. Because the federal law explicitly states that licensing does not fall within the scope of the sanctions discussed, there is no conflict between federal law and the Arizona law. The Court also upheld Arizona’s mandatory use of the program E-Verify, which checks a worker’s legal status, reasoning that it does not conflict with the Illegal Immigration Reform and Immigrant Responsibility Act that makes the use of E-Verify optional to the states.
Both Justice Breyer and Justice Sotomayor issued dissenting opinions. At the root of both dissents is their belief that the Arizona law does impose civil sanctions on employers, despite the fact that the state chooses to label them “licensing laws” instead. Justice Breyer, also joined by Justice Ginsburg, was concerned that the vague definition of “licensing” could essentially create unlimited exceptions to the federal law. The dissenting Justices also disagreed with the majority’s finding on the use of E-Verify, arguing that because federal law makes its use optional, no state may pass a law that makes its use mandatory.
Justice Kagan did not take part in hearing or deciding this case.