CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
The Immigration Reform and Control Act (IRCA) makes it “unlawfulfor a person or other entity . . . to hire, or to recruit or refer for a fee,for employment in the United States an alien knowing the alien is anunauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio-late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat em-ployment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or re-cruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2). IRCA also requires employers to take steps to verify an employee’seligibility for employment. In an attempt to improve that verificationprocess in the Illegal Immigration Reform and Immigrant Responsi-bility Act (IIRIRA), Congress created E-Verify—an internet-basedsystem employers can use to check the work authorization status ofemployees.Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment ofunauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona WorkersAct provides that the licenses of state employers that knowingly orintentionally employ unauthorized aliens may be, and in certain cir-cumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various busi-ness and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administer-ing the Arizona law, arguing that the state law’s license suspensionand revocation provisions were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate theArizona law because the law did no more than impose licensing con-ditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the nationallevel, it had expressed no intent to prevent States from mandatingparticipation. The Ninth Circuit affirmed.
Held: The judgment is affirmed. 558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II–A, concluding that Arizona’s licensing law is not ex-pressly preempted.Arizona’s licensing law falls well within the confines of the author-ity Congress chose to leave to the States and therefore is not ex-pressly preempted. While IRCA prohibits States from imposing “civilor criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” §1324a(h)(2). That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “li-cense” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partner-ship, and grants of authority to foreign companies to transact busi-ness in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has clear counterparts in APA and dictionary definitions of the word “li-cense.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” toone, and therefore comfortably within the savings clause. The Chamber’s argument that the Arizona law is not a “licensing” law be-cause it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic. The Chamber contends that the savings clause should apply only tocertain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, elimi-nated unauthorized worker prohibitions and associated adjudicationprocedures in another federal statute. But no such limits are even remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster itstextual and structural arguments is unavailing given the Court’sconclusion that Arizona’s law falls within the plain text of the savingsclause. Pp. 9–15.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress in-tended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress spe-cifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appro-priate tools to exercise that authority. And here Arizona’s law closely tracks IRCA’s provisions in all ma-terial respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” compare 8 U. S. C. §1324a(h)(3)with Ariz. Rev. Stat. Ann. §23–211(11); provides that state investiga-tors must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent deter-mination of the matter, §23–212(B); and requires a state court to “consider only the federal government’s determination,” §23–212(H). The Chamber’s more general contention that the Arizona law is preempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest, see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341. Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly inter-fered with the operation of a federal program, see, e.g., id., at 351. There is no similar interference here. The Chamber asserts that employers will err on the side of dis-crimination rather than risk the “ ‘business death penalty’ ” by “hir-ing unauthorized workers.” That is not the choice. License termina-tion is not an available sanction for merely hiring unauthorizedworkers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional viola-tions, an employer acting in good faith need not fear the law’s sanc-tions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe har-bors from liability when using E-Verify as required by the Arizonalaw. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibit-ing discrimination. There is no reason to suppose that Arizona em-ployers will choose not to do so. Pp. 15–22.
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not im-pliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedlypreempted. The IIRIRA provision setting up E-
Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretaryof Homeland Security may not require any person or . . . entity” out-side the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing aboutwhat the States may do. The Government recently argued just thatin another case and approvingly referenced Arizona’s law as an ex-ample of a permissible use of E-Verify when doing so. Moreover, Arizona’s use of E-Verify does not conflict with the fed-eral scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of theemployee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebut-table presumption of compliance with the law. Pp. 23–24.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way ob-structs achieving the aims of the federal program. In fact, the Gov-ernment has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Cham-ber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.