Supreme Court Holds that States can Close Businesses that Hire Illegal Immigrants

As CNN reports, in Chamber of Commerce of the United States of America v. Whiting, the US Supreme Court has ruled in favor of an Arizona law that punishes businesses that hire illegal aliens.  This is a big deal, in that the Supreme Court has found that the Arizona law is not preempted by federal immigration law.  It reasoned that the federal law permits states to act on immigration violations through licensing sanctions and similar laws.  While the federal law makes clear that civil and criminal penalties are expressly reserved to the federal government, licensing sanctions are not.  Therefore, Arizona’s law, under which Arizona may suspend and/or revoke the business licenses of employers that hire illegal aliens, is constitutional.

In addition to allowing Arizona to suspend and/or revoke the license of businesses that hire illegal aliens, the law also requires all employers in Arizona to use the online federal E-Verify system in hiring new employees.  E-Verify tells employers whether a particular employee has authorization to work in the United States.  I have long thought that E-verify will one day be mandatory for all employers, but was not sure how it would come to that.  This is one way that it may get there, at least in a large number of states.

With the Supreme Court clearing the way for states to punish and/or close businesses that hire illegal aliens, I expect we will see a flurry of activity of states implementing similar laws, thereby making it clear to businesses that they must use and rely on the E-verify system in hiring employees.

It should be noted that this is the one of the least controversial pieces of the Arizona law, and was essentially part of many bipartisan proposals for comprehensive immigration law at the federal level back in 2007-8.  Such proposals tended to combine border control measures, path to citizenship for current illegal aliens, and employer sanctions for hiring illegal aliens.  Sadly, as usual, politics got in the way of desperately needed reform, and so we see these piecemeal efforts at reform making their way through state legislatures and the legal system, and not always fueled by the best of intentions.

This latest development may get a lot of press attention because the law that was approved by the Supreme Court is connected to the more controversial Arizona law that permits local law enforcement to engage in racial profiling, but the actual decision itself approves a measure that was largely seen as rational (at least as part of comprehensive federal immigration reform) not so long ago.  I expect there will be national implications from this decision.  Stay tuned!

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