The Arizona law was actually signed in 2007 by former Governor (and current Homeland Security Secretary) Janet Napolitano. The ruling that the law was not preempted holds obvious significance for those who insist that the federal immigration laws do not occupy the entire field. However, the ruling was based on a more specific provision and question of licensing. Chief Justice John Roberts wrote that “[b]ecause we conclude that the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted.”
While the federal Immigration Reform and Control Act of 1986 forbids states from imposing sanctions for hiring illegal immigrants, the law exempts “licensing and similar laws.” The Court found this exemption allowed for state law like the one in Arizona. The most important passage for the upcoming case can be found in Part II-B where four justices stated:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed theStates to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appropriate tools to exercise that authority.
Justice Anthony Kennedy notably remains silent, but supports the majority. He is likely to be effectively a court of one if the other Arizona law reaches the Court.
While Kagan recused herself from the case (due to prior involvement as Solicitor General), the assumption is that she would have joined Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor in dissent. Indeed, one of the most telling aspects of the decision for the upcoming appeal of Arizona’s S.B. 170 is that, while it may not give a full measure of the position of the right of the Court, it probably offers a better glimpse into the left of the Court. If these justices considered the preemption question so clear on licensing, it would seem highly likely that they would be even more confident of preemption in the approaching appeal.
Justice Stephen Breyer makes an argument that could be easily lifted and put into a review of the most recent Arizona law:
First, the state statute seriously threatens the federal Act’s anti discriminatory objectives by radically skewing the relevant penalties . . . Second, Arizona’s law subjects lawful employers to increased burdens and risks of erroneous prosecution. . . And that is my basic point. Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination. And by defining “licensing” so broadly, by bringing nearly all businesses within its scope, Arizona’s statute creates these effects statewide.
At a minimum, the decision this week will encourage continued state experimentation with immigration laws — and prime the keg for the issue in the upcoming presidential election. However, it is clear that we have four justices who would be hostile to the claims under the recent Arizona law.
It is not clear how this opinion will affect Hazleton v. Lozano, et al. (10-772), which has been held by the Court since March 18th. That case involves local city ordinances regulating both employment and access to housing for unlawful aliens living in the city.
Here is the decision: 09-115
Jonathan Turley