The U.S. Supreme Court Nov. 2 invited the solicitor general to file a brief expressing the government's view on whether Arizona's immigration law requiring employers to use E-Verify and revoking the business licenses of those who hire illegal immigrants is preempted by federal immigration law (Chamber of Commerce of the U.S. of Am. v. Candelaria, U.S., No. 09-115, invitation to file brief 11/2/09).

On Sept. 17, 2008, the U.S. Court of Appeals for the Ninth Circuit upheld Arizona's law against a challenge from a coalition of business and immigrant rights groups, ruling that it is not preempted and does not violate employers' rights to due process (Chicanos por la Causa Inc. v. Napolitano, 9th Cir., No. 07-17272, 9/17/08; 26 HRR 1015, 9/22/08).

The Ninth Circuit rejected the plaintiffs' argument that the Legal Arizona Workers Act was preempted by the Immigration Reform and Control Act--which has a savings clause that permits state “licensing and similar laws”--finding that the state statute is a licensing law and thus is not expressly preempted by the federal law.

The coalition of businesses that challenged the law argued that the case is of “exceptional national importance” and argued that only the Supreme Court can adequately address the growing split in legal authority on the issue.

Petitioners Cite 'Crazy-Quilt' of State Laws.

According to the petition for a writ of certiorari filed by the coalition of business and immigrant rights groups--including the U.S. Chamber of Commerce, Chicanos por la Causa Inc., and Arizona Employers for Immigration Reform--the case involves “a question of exceptional national importance: whether state legislatures and municipal governments may override Congress's judgment concerning United States immigration policy.”

The coalition said that without immediate action by the Supreme Court the “crazy-quilt of state and local immigration statutes will continue to expand, multiplying burdens on employers and unfairness to employees” and resulting in a “flood of lawsuits, years of litigation, and an unnecessary waste of judicial, legislative, and executive resources.”

The petitioners cited a National Conference of State Legislatures report indicating that in the first three months of 2009 over 1,000 immigration-related bills were introduced in state legislatures (27 HRR 470, 5/4/09). Immigration law, “an area that is intended to be nationally uniform” now requires “employers to engage in a 50-state strategy” in making employment decisions, according to the petition.

According to the petitioners, the Supreme Court should take up the case because “the preemption issues presented in this case have been vetted by lower courts, and already have resulted in a split of authority.”

“An opinion by one court of appeals on the constitutionality of one statute, or even several, will not stop states and municipalities in other circuits from enforcing their own provisions, or enacting new ones,” the petitioners wrote. “This court is the only one that can address this issue definitively.”

State Says No Circuit Split, Case Properly Decided.

Arizona Attorney General Terry Goddard and Arizona Solicitor General Mary R. O'Grady countered in a brief to the court opposing review that the case presents only “narrow preemption questions that the lower courts correctly resolved.”

The state argued that the Supreme Court should not take up the case because no circuit split requires resolution, the lower courts correctly addressed the issues presented in the case, and the petitioners' concerns about immigration policy should be resolved by Congress instead of the courts.

In the brief, the state argued that the petitioners' concern about a “crazy-quilt of state and local immigration statutes” is unwarranted because the Arizona law “does not impose any new obligations on employers because IRCA's federal law provisions already prohibit employers from knowingly employing unauthorized aliens.”

According to the respondents' brief, the Arizona law “merely establishes state sanctions for that illegal conduct, as Congress specifically permits states to do” through the IRCA savings clause.

Copyright 2009, The Bureau of National Affairs, Inc.