US Supreme Court to Hear Appeal Challenging Arizona E-Verify Law

Yesterday, the U.S. Supreme Court agreed to hear an appeal to the Legal Arizona Workers Act (LAWA), a 2007 Arizona state law which requires all employers in the state to participate in E-Verify and imposes sanctions on employers who hire unauthorized workers. The case, U.S. Chamber of Commerce et al. v. Candelaria, will come before the Court in the fall of this year, with a decision expected in Spring 2011. Although the law only applies to Arizona employers, the Court’s decision could have a profound impact on the growing patchwork of state (and local) E-Verify requirements.

Background

LAWA was enacted in 2007 and signed by then-Governor Janet Napolitano in one of the first instances of immigration regulation by a state. The Act not only prohibits the hiring of unauthorized workers but also imposes severe sanctions on offending companies, including the revocation or suspension of the business license. In addition, the Act makes E-Verify mandatory for all Arizona employers and specifies that employers failing to participate may be denied economic development benefits and be forced to repay any benefits previously obtained from the state. Shortly after enactment, several business groups (including the US Chamber of Commerce) challenged the Act as being preempted by federal law. The U.S. district court disagreed, holding that the Act constitutes a “licensing or similar law” and that its provisions are not expressly preempted by federal immigration law. Last year, the U.S. Court of Appeals for the Ninth Circuit affirmed that decision.

In the case at hand, the US Chamber and other plaintiffs have argued that the appeal involves a unique issue: whether state legislatures and municipal governments may override Congress’s judgment concerning United States immigration policy. The plaintiffs have argued that the Arizona law is not an isolated case, as state legislatures and governments across the country have been seeking to regulate the employment of foreign workers through a growing number of state immigration laws.

Last month, the U.S. Solicitor General filed a brief, arguing that the Supreme Court should hear the case to decide on the federal preemption issue, but pass on the E-Verify portion of the law. In granting certiorari (review), the Supreme Court has decided to take up all issues presented, including:

(1)    Whether federal immigration law preempts any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized workers.

(2)    Whether a state or local government may require employers to enroll and participate in E-Verify.

(3)    Whether the Arizona statute is impliedly preempted because it undermines what previous case law describes as a “comprehensive scheme” to regulate the employment of unauthorized workers.

One final note: this case does not address Arizona’s more recent (and more well-known) law criminalizing unlawful presence by non-citizens (SB1070). It is certainly possible though that the Court’s decision will influence the challenges to SB1070 in the coming year.