[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-3 in Chamber of Commerce v. Whiting [Cornell LII backgrounder; JURIST report] that a controversial Arizona employment law [materials] is not preempted by the Immigration Reform and Control Act (IRCA) [text]. The law imposes penalties on businesses that hire illegal immigrants. Chief Justice Roberts delivered the first part of the opinion, joined by Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito, upholding the law as not explicitly preempted:

Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted. While IRCA prohibits States from imposing “civil or criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).

The second part of the opinion, which Thomas did not join, declares the act not impliedly preempted. The third part, joined by the majority, declares that requiring the federally optional E-Verify program is not impliedly preempted. Justice Elena Kagan did not participate in the decision. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented, arguing that the licensing sanctions in the law are contrary to the intent of IRCA, and that the E-Verify program is not reliable enough to be mandatory. Justice Sonia Sotomayor also filed a dissent, focusing on Arizona creating separate mechanisms to determine whether a business has employed an unauthorized alien, and that the law forces a decision on the use of a federal resource, which she considers Congress’ express power.

IRCA precludes states from making significant laws on immigration. However, the commonly referred to “savings clause” “preempt(s) 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 aliens.” The Legal Arizona Workers Act “prohibits businesses from knowingly or intentionally hiring an ‘unauthorized alien'” through requiring businesses to use several government programs, including E-Verify, to verify identities that are federally optional. If found employing unauthorized aliens, a business is subject to fines and a possible lose of license. E-Verify has been the subject of controversy due to inaccurate results showing legal immigrants as unauthorized aliens.