Cert Granted in Arizona Employer Sanction of Hiring of Undocumented Workers

The Court granted certiorari yesterday in Chamber of Commerce of the United States v. Candelaria, a case challenging the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."

The Ninth Circuit upheld the statute, affirming the district judge, noting that the statute had yet to be enforced, and observing that the challenge

is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and
the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.

In its discussion of the preemption challenge, the Ninth Circuit opinion reads like an excellent discussion of the doctrine, first distinguishing express and implied preemption, and then discussing the two categories of implied preemption: field preemption and conflict preemption.  The Ninth Circuit applied each of these doctrines to find that the state law is not preempted, even when the state law mandates the use of E-Verify when federal law arguably intended that its use be voluntary.  The Ninth Circuit also addressed the employers' due process arguments, finding that the state act provided sufficient process for employers to prevent evidence regarding an employee's status.

The Solicitor General's brief "filed in response to the Court’s order inviting the Solicitor General to express the views of the United States," advocated that the "petition for a writ of certiorari should be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by  8 U.S.C. 1324a(h)(2)—which 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 aliens.”

As Kevin Johnson over at Immigration Law Prof argues:

The decision by the Court on the scope of federal preemption of state immigration laws will likely have a significant impact on the outcome of the litigation challenging Arizona Senate Bill 1070, which has provoked a firestorm of controversy.  My speculation is that the controversy helped convince the Justices to grant cert and to offer guidance on the room, if any, for state and local governments to attempt to regulate immigration and immigrants.

Certainly, there will be more discussion about Chamber of Commerce of the United States v. Candelaria.

RR

image: "The Floor Scrapers" by Gustave Caillebotte, 1875, [typo in year corrected! thanks!], via.