State Regulation of Undocumented Aliens in the Workplace

One might plausibly refrain from inferring any general lessons about preemption from U.S. Chamber of Commerce v. Whiting,121 as the Roberts Court relied heavily on a literalistic reading of the specific language in the federal statute without invoking explicitly any presumption against preemption. Nevertheless, the Court’s willingness to tolerate state regulation in an area traditionally viewed as requiring nationwide uniformity is at least consistent with the idea that the Roberts Court has been skeptical of preemption in what I call regulatory contexts.

Arizona’s Legal Arizona Workers Act[1] was a broad state statute to stuff into the saving clause of the Immigration Reform and Control Act of 1986 (IRCA), because the state law defined “license” to include virtually any authorization or permit necessary for an enterprise to conduct business in the state. Whiting held that this state law fell within IRCA’s exemption from preemption for “licensing and similar laws” and therefore was not preempted under IRCA’s prohibition on “any State or local law” that “impos[ed] 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.”[2] While purporting to rely on straightforward definitions of licensing in dictionaries and other federal statutes,[3] Whiting also brushed aside the idea that Arizona encroached on a forbidden federal field of foreign relations law, noting that “ [r] egulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern.”[4] Construing statutory limits on federal agencies narrowly, Whiting refused to infer any broad right of businesses to be exercise options from the ban on agencies’ requiring the sue of E-Verify.[5]

The surprising aspect of Whiting, in sum, is that the Roberts Court’s analysis of preemption was so conventional. The straightforward textual analysis and rejection of implied preemption ignored the idea that there was a special need for national uniformity in the field of immigration law. The Court commended Arizona because it “went the extra mile in ensuring that its law closely tracks IRCA’s provisions in all material respects.” But tracking the content of federal law might seem to be an argument in favor of preemption, if one regarded that law as a balanced whole that excluded any supplementing by the states. By construing IRCA’s saving clause literally to encompass any state suspension of any business license, the Roberts Court sidestepped any discussion of the federal government’s special role in the regulation of immigration.

  • [1] Ariz. Rev. Stat. Ann. § 23-212(A) and (F).
  • [2] 8 U.S.C. § 1324a(h)(2) (2011).
  • [3] Whiting, 131 S. Ct. at 1978.
  • [4] Id. at 1983.
  • [5] Id. at 1985.
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