Friday, December 10, 2010

The other employment argument at the Supreme Court this week

In addition to Thompson v. North American Stainless,Supct there was a second argument at the Supreme Court this week that related to worklaw: Chamber of Commerce v. Whiting. Whiting involves that "other" Arizona law, the one that penalizes employers that employ workers not authorized to work in the United States. The law allows the state to revoke any license, charter, or permit that allows the business to operate in the state, and it requires employers to participate in the federal government's E-verify system to receive any state grant, loan, or other incentive.

An unusual coalition of plaintiffs including the U.S. Chamber of Commerce and several labor and civil rights groups, brought a federal action seeking to enjoin the enforcement of this law, arguing that it was preempted by federal immigration law. The district court held that the Arizona law was neither expressly nor impliedly preempted. It was not expressly preempted because it was a licensing law, and federal immigration laws do not preempt state licensing laws. It was not impliedly preempted because even though federal law made use of the E-Verify system only optional, it did not expressly prohibit states from making its use mandatory. The Ninth Circuit affirmed.

After the oral argument, Lyle Denniston at Scotusblog suggests that the Court will affirm the Ninth Circuit, 4-4: 

From questions and comments, it appeared that only one of the eight Justices was a bit uncertain about how to react to the Arizona law — Anthony M. Kennedy.  What Kennedy said overall, though, seemed to suggest that he was more skeptical than not of the law’s validity.  From what others said, however, Arizona may well win, one way or another.

Were Kennedy to vote to uphold the law, despite apparent reservations, the result probably would be a 5-3 win for Arizona.  But if he voted to strike down the law, there seemed likely to be only three other votes to go with his, making the vote 4-4 — but Arizona still would win, because such a split vote would summarily affirm a Ninth Circuit Court decision that upheld the state’s worker control law.  Evenly divided results, however, do not set a precedent beyond the individual case, so the result in the future, if all nine Justices took part, might well come out differently: Justice Kagan’s vote could be the swing vote.  And other test cases are on the way — including one involving an even broader Arizona anti-immigration law, and a set of alien restrictions adopted by the local government in Hazleton, Pa.

Justice Scalia seemed very annoyed with what he perceived to be the federal government's failure to enforce the immigration law. Most of the other justices seemed concerned about whether the Arizona law really simply mirrored federal law or added a new requirement, with some believing the former, and others the latter.

Justice Breyer came closest to actually asking why the states didn't have to defer to the enforcement balance struck by the executive branch and not challenged to date by Congress. He asked about the balance struck by federal law between deterring discrimination on the basis of national origin, race, or ethnic group on the one hand, and the rules on entry into the country on the other. It seems there is another potential argument lurking there, too. The executive branch and Congress seem to have the primary constitutional authority to decide what our policy toward immigration should be, and part of that policy might be actions that are perceived as underenforcement by some. Perhaps that's too controversial for any of the parties to make, though.

For more information as we anticipate the decision, check out the filings at Scotusblog's case file.

MM

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