The Supreme Court's five conservatives are siding with conservative ideology against business interests here, but Chamber of Commerce v. Whiting is an interesting case for other reasons as well. The ruling handed down today concerns an Arizona law that 1) sanctions employers that hire undocumented immigrants and 2) requires them to use the federal "E-Verify" program. Congress does not permit individual states to pass their own sanctions against employers who hire undocumented immigrants, but Arizona wrote its law in a way that, on its face, only suspended or revoked the licenses of businesses once they were found guilty of hiring illegal immigrants. The Court held 5-3 that both elements of the Arizona law did not violate federal preemption.
The majority's argument, in essence, is that the Arizona law is consistent with commonly understood definitions of "licensing," and because it was tailored to the requirements of federal law, it should be upheld. Breyer's dissent argues that construing "license" so broadly "undermin[es] Congress’ efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment." Sotomayor's dissent argues that "[w]hen viewed in context, the saving clause can only be understood to preserve States’ authority to impose licensing sanctions after a final federal determination that a person has violated IRCA by knowingly employing an unauthorized alien."
This is a close case, and Arizona's scapegoating of illegal immigrants in general is hateful (although employer sanctions are certainly preferable to directly targeting undocumented immigrants). And yet, I actually sympathize with the argument made by the conservative majority here, for the same reason I think they were wrong in the recent AT&T class-action case: Congress is free to reduce the regulatory burden on businesses over other state objectives, but we cannot simply assume that it must do so. I am much more concerned about this possibility that the law could lead to more discrimination against lawful workers -- which, as Breyer points out, is a serious concern.
If I had to decide now, my inclination would be to hold that the sanctions in the Arizona law conflict with federal law and the requirement to use E-Verify does not -- but I'm open to persuasion on both counts.
