Court to Consider Legality of Arizona Law Sanctioning Employers Who Hire Unauthorized Workers

Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v. Whiting, (June 28, 2009) (No. 09-115)

This case involves a challenge to the Legal Arizona Workers Act, an Arizona state law prohibiting employers from knowingly or intentionally employing an unauthorized immigrant. The petitioners allege that the Arizona statute is unlawful because it is preempted by federal immigration laws that regulate the employment of non-citizens. The lower courts upheld the statute, finding that it was not preempted by federal law.

On June 28, 2010, the Supreme Court granted the petition for certiorari to address three questions:

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "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." 8 U.S.C. § 1324a(h)(2).
   
   
2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.
3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

Prior to granting the petition for certiorari, the Supreme Court had invited the Solicitor General to file a brief in the case expressing the views of the United States. In the brief for the United States as amicus curiae, the Solicitor General asked the court to grant the writ of certiorari to consider whether provisions of the Immigration Reform and Control Act (IRCA), codified at 8 U.S.C. § 1324(h)(2), expressly preempt the provisions of the Arizona state law. According to the United States, the Arizona law is expressly pre-empted by federal immigration law and the case presents an important legal question that warrants the Supreme Court’s consideration. “[The employer-sanctions provisions of the Arizona statute] disrupt[s] a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country.”

The American Immigration Council, along with the American Immigration Lawyers Association and the National Immigrant Justice Center, also filed a brief [1] in support of the challengers in which we provide the Court with the immigration practitioners’ perspective on the complexity of the federal system and the burdens employers, workers and practitioners will face if the states are allowed to adopt competing schemes.

The Court heard argument on December 8, 2010 (click for transcript [2] or audio [3] of the argument). 

For more information on this case, and other state and local litigation in Arizona, please see the Legal Action Center’s State and Local Law Enforcement [4] litigation issue page. For more information on litigation challenging SB 1070, please see the Arizona SB 1070, Legal Challenges and Economic Realities [5] litigation issue page.

• Ninth Circuit Decision [6]
• Petition for Certiorari [7]
• Amicus Brief of the Solicitor General in support of the petition for certiorari [8]
• Merits Briefs (including amicus briefs) [9]