Chamber of Commerce of the United States v. Whiting: Giving the Green Light to States' Broad Use of Immigration-Related Employer Sanctions

I. INTRODUCTIONWith the Legal Arizona Workers Act (LAWA) and S.B. 1070, Arizona has a growing reputation for laying the foundation for state crackdowns on illegal immigration.1 In the days following the Supreme Court's decision in Chamber of Commerce of the United States v. Whiting, in which it upheld the Legal Arizona Workers Act, there were predictions that state efforts to enforce immigration would increase throughout the country.2 People expressed fears that racial discrimination against prospective employees would increase.3 There were even worries that the entire farming industry in the United States might collapse if similar laws were passed throughout the country.4This Comment argues that the Supreme Court erred in holding that federal immigration law does not preempt LAWA. The Arizona law's definition of "license" not only prevents it from falling under the Immigration Reform and Control Act's savings clause, but it also conflicts with the Immigration Reform and Control Act's comprehensive scheme for immigration regulation through employer sanctions.5 Part II of this Comment examines federal immigration law, such as the Immigration Reform and Control Act of 1986 (IRCA), and state law such as LAWA.6 Part II also discusses the preemption doctrine.7 Part III argues that the Supreme Court's preemption analysis did not properly take into account the context of IRCA, leading the Court to incorrectly hold that IRCA does not expressly preempt LAWA's sanctioning provisions.8 Part III also asserts that the Supreme Court should have held that IRCA impliedly preempts LAWA's employer sanctions.9 This Comment also advances that the Supreme Court should have held that LAWA's mandate of E-Verify, a federal voluntary program, is impliedly preempted.10 Part IV of this Comment offers policy arguments in support of amending IRCA.11 Finally, Part V of this Comment concludes that to prevent a patchwork of state and local immigration-related employment laws, Congress should amend IRCA in light of the Court's decision and the increasing number of state and local immigration-related employment laws.12II. BACKGROUNDA. The Immigration and Nationality Act and the Immigration Reform and Control ActCongress enacted the Immigration and Nationality Act (INA) in 1952.13 Considered a "comprehensive federal statutory scheme" for regulating immigration and naturalization, the INA regulates the entry, residency status, length of stay, removal, and naturalization of non-citizens.14 However, federal immigration regulations did not address the hiring of undocumented immigrants until the passage of IRCA.15 IRCA amended the INA to include provisions concerning the employment of unauthorized aliens, and its goals include discouraging illegal immigration with little employer disruption,16 while minimizing the possibility of employment discrimination.17 The Supreme Court has referred to IRCA as a "comprehensive scheme prohibiting the employment of illegal aliens in the United States."18Under IRCA, it is unlawful for an employer to knowingly hire an unauthorized alien, or to hire an individual without complying with enumerated employment verification requirements.19 In addition, IRCA makes it unlawful to continue to employ a person if it becomes known that the employee is, or has become, an unauthorized alien.20 If an employer hires or continues to employ someone who is an unauthorized alien, an administrative law judge must issue an order requiring the employer to cease and desist its violations and pay a civil penalty.21 The amount of the civil penalty ranges from $375 to $16,000, depending on the number of previous violations committed by the employer.22 If an employer does not comply with the paperwork requirements for employment verification, an administrative law judge will issue an order requiring the employer to pay a civil penalty ranging from $110 to $1,100.23 Employers may be subject to criminal penalties of $3,000 for each unauthorized alien and/or up to six months' imprisonment if they engage in a pattern of knowingly hiring or continuing to employ an unauthorized alien. …