Chamber of Commerce of the United States v. Whiting

PETITIONER: Chamber of Commerce of the United States, et al.
RESPONDENT: Michael B. Whiting, et al.
LOCATION: Arizona State Legislature

DOCKET NO.: 09-115
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 563 US 582 (2011)
GRANTED: Jun 28, 2010
ARGUED: Dec 08, 2010
DECIDED: May 26, 2011

Carter G. Phillips - for the petitioners
Mary R O'grady - on behalf of the respondents
Neal Kumar Katyal - Acting Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the petitioners

Facts of the case

Various business and civil-rights organizations challenged the enforceability of The Legal Arizona Worker's Act ("LAWA") in an Arizona federal district court. They argued that federal law preempted LAWA, which requires Arizona employers to use the federal E-Verify employment verification system and revokes business licenses of those who hire unauthorized workers. The district court upheld the statute.

On appeal the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that LAWA was not preempted explicitly or impliedly by the federal Immigration Reform and Control Act ("IRCA"). The court reasoned that IRCA although IRCA expressly preempts all state and local laws imposing sanctions for hiring or recruiting unauthorized aliens, it excepts licensing laws – like LAWA – from preemptive reach. The court also reasoned that mandating the use of E-Verify is not impliedly preempted by IRCA because Congress could have, but did not, expressly forbid states form requiring E-Verify participation.


An Arizona law requires state employers to check the immigration status of job applicants through a federal computer database, although the federal law creating the database makes its use voluntary. Arizona also revokes the business license of state companies that hire undocumented workers. Are these provisions pre-empted by federal immigration laws?

Media for Chamber of Commerce of the United States v. Whiting

Audio Transcription for Oral Argument - December 08, 2010 in Chamber of Commerce of the United States v. Whiting

Audio Transcription for Opinion Announcement - May 26, 2011 in Chamber of Commerce of the United States v. Whiting

John A. Campbell:

The Immigration Reform and Control Act (IRCA), makes it unlawful to knowingly employ and unauthorized alien.

Employers that violate the prohibition may be subjected to federal civil and criminal sanctions.

IRCA also restricts the ability of states to combat employment of unauthorized workers.

The Act provides that States cannot impose civil or criminal sanctions on such employers "other that through licensing and similar laws.”

That's important language, “other than through licensing and similar laws.”

Well, Arizona passed a licensing law known as the Legal Arizona Workers Act.

That law provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be suspended or revoked and in certain circumstances must be suspended or revoked.

The Chamber of Commerce of the United States and various business and civil rights organization, which I will refer to collectively as the Chamber, filed suit to block the law, arguing that it was preempted by federal law or IRCA.

The Federal District Court in Arizona upheld the law and so did the Court of Appeals for the Ninth Circuit.

Now, as just to explain, the federal law expressly preserves, not preempt 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.

Now, the Chamber argues that when Congress said licensing, what it really meant was a specific type of license such as a license to operate a farm labor contracting business.

But no such limit is even remotely discernible in the statutory text.

We think it pretty unlikely that Congress would say license if what it meant was a license to operate a farm labor contracting business.

The Chamber also argues that when Congress said that States could impose sanctions through licensing laws, what it really meant was that States could only do so after a prior federal adjudication that an employer had hired an unauthorized alien.

But again, such a limitation is nowhere to be found in the federal statute and it is not our job to rewrite the law to put one in.

The Chamber contends that even if the Arizona licensing law is not expressly preempted, it is impliedly preempted.

We will find implied preemption when you put the federal law and the state law side-by-side and the two really can't work together.

In that event, the state law has to yield, but that's not the case here.

Arizona statute simply implements the sanctions that Congress expressly allowed the States to pursue through licensing laws.

And here, Arizona has gone the extra mile by closely tracking the federal laws provisions immaterial respects.

The state law adopts the federal definition of who qualifies as an unauthorized alien.

The state law provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government.

The state law requires a state court to consider -- this is a quote, “to consider only the Federal Government's determination of employee status.”

The Chambers asserts that employers will air on the side of discrimination rather than risk having their business licenses revoked by hiring unauthorized workers, but that is not the choice.

An Arizona business has to do a lot more than simply hire an unauthorized alien to have its licenses suspended or revoked.

The hiring has to be knowing or intentional and license termination is an available sanction only for a second knowing or intentional violation during a probationary period imposed for the first violation at the same business location.

The state law also affords employers safe harbors against liability if they comply with certain requirements for checking employee status, even if the employee turns out to be an unauthorized alien.

There's another aspect of the Arizona law that was challenged in this suit.