Chamber of Commerce v. Whiting is a case of such clarity that the District Court, the Ninth Circuit Court, and the Supreme Court all reached the same decision; one is only left to wonder how three members of the Supreme Court could have failed to come to the same conclusion. In this case, the U.S. Chamber of Commerce and others filed a lawsuit against the state of Arizona alleging that Arizona’s “Legal Arizona Workers Act” violated the U.S. Immigration Reform and Control Act (hereafter IRCA). The Obama administration supports this challenge and filed an amicus brief in support of the Chamber of Commerce arguments.[1] This claim has been overturned from court to court as the suit went forward.
The IRCA makes employing an illegal alien illegal; such employers can face both federal civil and criminal punishments. To achieve uniformity across the nation, the IRCA prevents states and local governments from enacting similar laws punishing employers of illegal aliens “other than through licensing and similar laws.”[2] This prohibition is what is known as a federal preemption. The IRCA also gives a definition of “unauthorized alien” as one who is not legally a permanent resident or one who is not authorized to be employed.
The Chamber of Commerce challenged the Arizona law on the basis of the federal preemption. The “Legal Arizona Workers Act” provides that for a first offence the employer must fire all unauthorized alien workers, submit to a three year probationary period, and sign an affidavit swearing that he has ceased employment of all unauthorized aliens; if he refuses, his business licenses will be revoked by the state. For a second violation “the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer and that are necessary to operate the employer's business at the employer's specific to the business location where the unauthorized alien performed work.” [3] The act also made it mandatory for employers to consult the E-Verify system,[4] which is a work authorization record system created by Congress in the Illegal Immigrant Reform and Immigrant Responsibility Act[5]. The “Legal Arizona Workers Act” therefore is essentially regulating the licenses of businesses within Arizona, not illegal aliens themselves. Both the District Court and the Ninth Circuit found that the Arizona law was merely a law dealing with its licensing procedures and was thus valid.
The main argument of the Chamber of Commerce is that the Arizona law is not a licensing law since it deals only with the revocation or suspension of licenses and not the granting of licenses. Justice Roberts dismisses this argument as “contrary to the definition that Congress itself has codified…. It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.”[6]
The Chamber of Commerce also argued that the IRCA does not authorize each state to engage in prohibiting employers from employing illegal aliens. Justice Roberts points them clearly back to the IRCA which clearly allows states to regulate “licensing and similar laws.” [7]
He cites the Arizona law as following the language of the IRCA in everything from definitions to processes; the Arizona law was very carefully crafted to not exceed its authority or to use definitions other than those provided by Congress.
The Chamber of Commerce also takes issue with Arizona’s requiring the use of the E-Verify program to determine a worker’s eligibility for employment. Congress did not make the program mandatory, but Arizona has for licensing purposes. Justice Roberts points out the legislation establishing the E-Verify program puts restraints only on the Department of Homeland Security, not on the states. Using President Obama’s own words against him from an Executive Order issued in 2008, “[T]he State of Arizona has required all public and private employers in that State to use E-Verify . . . . This is permissible because the State of Arizona is not the Secretary of Homeland Security.” Additionally, the only penalty for not using the E-Verify program is a loss of favorable presumptions should the employer be taken to court. Because the state of Arizona’s law is within the limits set by Congress and because of its reliance on federal definitions, Arizona’s law is clearly constitutional.
The dissenting opinions’ concerns range from Arizona’s definition of licenses to the fact that Arizona has not enacted any antidiscrimination penalties. The IRCA in addition to enacting punishments for employing unauthorized workers also punishes employment discrimination on a racial/ethnic basis. To assume, however, that this forces Arizona to do the same is without basis in fact or law. It may be a genuine concern that Arizona’s law will lead to discrimination, but that concern itself cannot make the law unconstitutional. Arizona’s license definition, as Justice Roberts points out, is not problematic and is very similar to the federal definition laid out in the Administrative Procedure Act. The dissent also takes issue Arizona’s making use of the E-Verify program mandatory, but fails to see that it is only mandatory in regards to receiving favorable presumption should an alleged violation occur.
Congress’ restraint in not using the IRCA to usurp stat licensing power is commendable; the dissents’ narrow interpretation of this licensing power is not. The legislature of Arizona carefully crafted a law in keeping with the intent and definitions of the IRCA in order to keep jobs within the state of Arizona to prevent unauthorized workers. This is clearly within their power under the savings clause of the IRCA. The attempted usurpation of state power suggested by the U.S. Chamber of Commerce and supported by the Obama administration was so ridiculous as to be unable to receive the support even of the liberal leaning Ninth Circuit Court.
[1] http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_09_ 115_PetitionerAmCuUSA.authcheckdam.pdf
[4] http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261 405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD
SPEAK UP NOW OR PAY HIGHER TAXES LATER?
ReplyDeleteThe Dream Act in itself, might be a reasonable law allowing
the students of illegal parents, to be permitted to stay in the United States?
But the ramifications are more ominous, that once the students have legitimacy
they can then start petitioning for family members and that by any other name
is CHAIN MIGRATION. It further challenges more people to simply scorn what lax
laws we have and just enter illegally. Immediate family members overtime can
then bring in even more people, and this has set up a chain reaction. Just like
another possibility of yet a second mass amnesty, it always attributes to
costs. It has been verified that the 1986 accounting, when the final tally was
made that it cost US taxpayers 76 Billion dollars. By the time of a further
amnesty in today’s dollars and cents had been calculated, the Heritage
foundation assessed such final bottom line of in the range of 2.6 Trillion
dollars.
Now this dollar figure is based on the assumption, that there are only 11 to 12
million foreign nationals in the country, a number based on processing,
background checks and an accumulation on other personal data along with medical
examinations. But (FAIR) Federation of American Immigration Reform, (
NUMBERSUSA) and thousands of grass root sovereignty organizations have assessed
the population figures to well over 20 billion. This is an overwhelming number
to consider and a dollar figure to incredulous to even imagine. That would
strip any gains against the $14.5 Trillion dollars we owe outside the shores of
America. This nation must be entirely thankful to the great State of Arizona,
who started this long and dangerous crusade against the tyranny inside the
Obama administration that would welcome into America every indigent family from
across the globe.
America cannot keep giving anymore as they are not representing the needs of those of
Citizens and legal residents? Taxpayers have been burdened to long in Georgia,
Alabama, Arizona that has become the height of outrageous irresponsibility and
indifference. Rallies or demonstration are looked upon with disdain and anger, with
those politicians who pander to foreign nationals exhibiting poor
judgment. There may be thousands protesting immigration laws, but think about the other
half of law-abiding people, that is certainly to be in the tens of millions?
Arizona outburst against unfair laws was just the beginning and now
the real battle will begin in the coming months as we progress towards the 2012
election.
THOSE STATES THAT HAVE NEGLECTED THE PEOPLES WISHES, BY ADDING SENSIBLE
ENFORCEMENT LAWS WILL BE QUICKLY OVERRUN BY ABSCONDERS FROM GEORGIA, ALABAMA.
EVENTUALLY LAX ENFORCEMENT STATES WILL BE PAYING A HEAVY PRICE IN MORE
WELFARE AND PUBLIC SERVICES, AS UNDER CONSIDERABLE PRESSURE FROM ECONOMIC
ILLEGAL ALIENS?
Stepping forward now the TEA PARTY is the only true way that will elevate this
ReplyDeletemassive debt, placed upon taxpayers by thoughtless politicians. We cannot trust
the Imperials in the Republican Party and we certainly cannot trust the
undercover far Left, that has impregnated the Democrats. Either party has had
their own agenda for omnipotent power of new voters through illegal
immigration, or the overall influence from big business to relax laws, so
millions can be used for a lesser form of slavery; except in both ideals the
programmed taxpayer picks up the unknown estimated cost to support them. In
three decades America's working man/ women has lost a percentage of his wages,
to support illegal immigrants. How academia thinks the economy would grow, must
live in a delusional world, when nearly every State is burdened by instant
citizenship baby laws, which under the current misinterpretation payments of
cash to these families, has diluted every treasury.
Our schools are crammed to capacity, full of the children of illegal aliens,
the health system slowly falling apart as more hospitals fail of wanton
families to be treated; many of these institutions unable to survive. Then we
have the US penal system choked with illegal alien criminals, that is yet
another tax hike on the American population. The TEA PARTY is our only remedy
as the Congress, have no sense of urgency to the impending financial crash.
Perhaps Rep. Michele Bachman of Minnesota, Sen. Rand Paul of Kentucky, Sarah
Palin of Alaska; all regarded as strong supporters of the ever growing TEA
PARTY. Only the TEA PARTY leaders seem to understand the financial predicament
we have truly manufactured for ourselves, from the years of corruption within
equal parties. The TEA PARTY has astounded both political parties in power, and
will release us from the years of rot and poor or intentional mismanagement to
gain favor with open border lobbyists. The TEA PARTY has sworn to the major
majority of the American people, no new amnesties of any kind, which includes
the dismantling of Sanctuary cities and towns, no dream Acts or anything
assigned to foreigners who broke our stagnant laws.
To accomplish this task we must insist our government implement mandatory
E-Verify and Secure Communities, which will track down both illegal workers and
criminal illegal aliens. There must be no compromises, but that Congress should
enforce these laws, without interference from the open border zealots or the elitist
groups discount labor.
You should also introduce yourself to the people who run this devastated
country at the Senate—202-224–3121/ House—202-225–3121 and tell them it’s time
to depart of fight for the American taxpayer.