Thursday, May 26, 2011
Supreme Court's Whiting Immigration Decision and Griffith on Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work
This is not only a big labor day in Wisconsin for the reasons Jeff points out in the previous post, but also as far as immigration law and employment law. The US Supreme Court decided today in a fractured opinion in Chamber of Commerce v. Whiting (U.S. May 26, 2011), that the Arizona law, which attempts to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws," is valid. More specifically, the Court upheld against preemption attack the Legal Arizona Workers Act, which provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Court reasoned tha because, "the State’s licensing provisions fall squarely within [IRCA]’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted."
With great timing, Katie Griffith (Cornell ILR) has posted her new piece on SSRN, forthcoming in the Yale Law and Policy Review: Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work.
Here is the abstract:
Recently, there has been a federal-subfederal tug of war about whether subfederal governments can enact laws prohibiting the employment of undocumented immigrants and requiring employers to use an electronic employee-verification system without running afoul of the Constitution’s Supremacy Clause. This article reframes and sheds new light on this pressing constitutional question. To date, court battles and scholarship on this issue have exclusively focused on whether federal immigration law preempts these subfederal laws. In contrast, this article alters the analytical lens and exposes the preemptive effects of two federal employment statutes—Title VII of the Civil Rights Act and the Fair Labor Standards Act. It draws from legislative history, Supreme Court jurisprudence and scholarship to both demonstrate the need to consider federal employment law’s preemptive effects and to develop a new implied preemption framework.
The analysis reveals that subfederal employer sanctions laws are unconstitutional because they conflict with fundamental federal employment policy goals to protect employees from employment discrimination and to encourage valid employee-initiated complaints for the benefit of employees more broadly. The article also elaborates why we should consider the joint preemptive effect of the two federal statutory regimes that subfederal employer sanctions laws implicate: federal immigration law and federal employment law. This hybrid "immployment-law" preemption framework shows that subfederal employer-sanctions laws may also conflict with Congress’s intent to promote federal employment policy as part of the Immigration Reform and Control Act.
Great read and the piece provides a much needed alternative perspective to the decision by the Supreme Court today in Whiting. Check it out!