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Supreme Court agrees to review legal challenge to Arizona’s employer sanctions law

The US Supreme Court is entering the nationwide debate over immigration reform, agreeing on Monday to review whether the Legal Arizona Workers Act, which suspends and revokes the business licenses of employers that intentionally or knowingly employ workers who are not authorized to work in the United States, is preempted by federal immigration law ( Chamber of Commerce v Candelaria, Dkt No 09-115, certiorari granted June 28, 2010). The law, which took effect in January 2008, also requires employers in the state to use the federal government’s E-Verify program to check the employment eligibility of their new hires. The Legal Arizona Workers Act was signed into law by then-Arizona Governor Janet Napolitano; she is now Secretary of Homeland Security.

The Ninth Circuit upheld the legality of the law in September 2008 against a facial challenge from a group of plaintiffs, led by the US Chamber of Commerce’s National Chamber Litigation Center, among other business and civil rights groups. Despite the Chamber’s claim that the Legal Arizona Workers Act was preempted by the Immigration Reform and Control Act, which expressly preempts any state or local law imposing civil or criminal sanctions upon employers who employ undocumented workers, the Ninth Circuit held that Arizona’s employer sanctions law was “saved” from preemption because it fit squarely within IRCA’s “saving clause,” which exempts “licensing or similar laws.” The plaintiffs filed a cert petition on July 24, 2009, urging the High Court to take up the case. In November 2009, the High Court asked the US Solicitor General for the federal government’s views on the case.

The Obama administration weighed in last month, urging the Supreme Court to examine the Legal Arizona Workers Act because it was not a “licensing or similar law[]” and it conflicted with the federal enforcement scheme created by IRCA; it is instead a statute that prohibits the hiring of undocumented workers and uses suspension and revocation of all state-issued licenses as its ultimate sanction, said. And, said Acting Solicitor General Neal Kumar Katyal, the sanctions are far more severe than those authorized under federal law. While the acting solicitor general recommend that cert only be heard on the preemption issue, finding that certiorari was unnecessary with respect to the Chamber’s question about whether states and local governments may require employers to enroll, or participate, in E-Verify as a matter of law, the Court did not limit the questions presented by the petitioners.

Arizona’s immigration enforcement law (S.B. 1070) passed in late April, which gives police and state officials broad powers to enforce the state’s immigration laws, requires immigrants to carry valid documents proving their legal status, and makes it a misdemeanor to attempt to hire, pick up or transport day laborers, is not at issue in this suit. That law, which has already been amended (H.B. 2162), takes effect July 29, 2010, unless stopped through a legal challenge.