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Court Upholds Arizona Law Mandating E-Verify, Creating Employer Sanctions

Chamber of Commerce v. Whiting, 563 U. S. __, 131 S. Ct. 1968 (2011)

In a 5-3 decision written by Chief Justice Roberts, the Court held that the Legal Arizona Workers Act of 2007 is not preempted by federal law. The Arizona law mandates the use of E-Verify by all employers within the state and allows Arizona courts to suspend or revoke the business license of any employer who “knowingly or intentionally” violates federal employment verification requirements.

A majority of the Supreme Court rejected the argument that Arizona’s law was preempted, relying on a specific exception in the Immigration and Nationality Act that permits state governments to regulate employment verification through licensing. Adopting a broad definition of licensing, the opinion emphasized that federal government determinations regarding an employee’s authorization to work control liability under Arizona’s law.

While conceding that the Immigration and Nationality Act precludes the Secretary of Homeland Security from mandating participation in E-Verify by employers other than the federal government, the majority found that this restriction does not impact the states’ ability to do the same thing. Chief Justice Roberts noted that, in the face of a challenge to a 2008 Executive Order mandating the use of E-Verify by federal government contractors, the Justice Department had used Arizona’s E-Verify mandate to justify the government’s position that only the Secretary is prohibited from requiring E-Verify compliance. The majority opinion does not address the many good reasons—including pervasive system errors and high implementation costs—that Congress opted to make E-Verify voluntary.

Read more about the opinions in the case and how this decision will impact litigation on SB 1070.