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Presuming preemption: Implications of Chamber of Commerce v. Whiting

The following is an essay for our symposium on Arizona v. United States by Lauren Gilbert, Professor of Law at St. Thomas University School of Law in Miami Gardens, Florida. Professor Gilbert  teaches Constitutional Law, Immigration Law, and Professional Responsibility.  Together with Michele Vargas of the Hispanic National Bar Association, she is supervising a team of students this summer who are researching Arizona copycat laws throughout the country.


I. Introduction

Over the last few years, and particularly since 2007, the year of the last major failed attempt at comprehensive immigration reform, lawmakers in states and communities across the nation have taken the regulation of immigrants and immigration into their own hands.  Most of these laws are of two types:  laws regulating employers’ hiring of immigrants; and laws providing for state and local enforcement of U.S. immigration law.  In April 2010, legislation of the latter type made national news when Jan Brewer, the Governor of Arizona, signed into law S.B.1070, the Support Our Law Enforcement and Safe Neighborhoods Act.  In so doing, she accused the Obama Administration of failing to enforce the immigration laws:  “Arizona did not ask for this fight with the federal government,” she said.  “But now that we are in it, Arizona will not rest until our border is secured and federal immigration laws are enforced.”  This law, as Kevin Johnson and Richard Samp have already discussed, contained some of the harshest provisions to date regulating immigrants.  The law was met with a series of challenges, and in July 2010, U.S. District Judge Bolton enjoined enforcement of various provisions, a decision later upheld by the Ninth Circuit in United States v. Arizona.

But before S.B. 1070, there was the Legal Arizona Workers Act of 2007 (“LAWA” or “Act”). LAWA essentially did two things:  (1) It allowed government officials to revoke the business licenses of employers who knowingly or intentionally hired unauthorized foreign nationals; and  (2) it required  employers to use the federal E-Verify system for determining whether an employee was authorized to work.  On May 26, 2011, a sharply divided Court upheld these provisions in Chamber of Commerce v. Whiting.   It found that they were neither expressly nor impliedly preempted by the 1986 Immigration Reform and Control Act, which gave the federal government the power to sanction employers who hire “unauthorized aliens,” nor by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which created the Basic Pilot Program which later became known as E-Verify. The Court found that the license revocation provision was not expressly preempted by IRCA, which preempted “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,”  because it fell squarely within the express preemption provision’s savings clause.  The Court also found that LAWA was not impliedly preempted by IRCA because Arizona had taken the route “least likely to cause tension with federal law,” relying on the federal standards in IRCA and IIRIRA for sanctioning employers.   Moreover, once the majority concluded that the Arizona statute was not expressly preempted, it was unwilling to further explore whether it might be conflict preempted.   The Chief Justice wrote: “Implied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives.’” Eleven days later, the Court vacated and remanded the Third Circuit’s decision in Lozano v. Hazleton, which in 2010 had struck down, on implied preemption grounds, a Hazleton, Pennsylvania ordinance with language similar to Arizona’s license revocation provision on the basis that the local ordinance conflicted with IRCA’s carefully balanced policy goals.

The Court’s decisions in Whiting and Hazleton underscore the tension in preemption doctrine between cases where the Court has emphasized the presumption against preemption where Congress regulates in an area of “traditional state concern” and those where the Court has declined to apply the presumption on the basis that Congress has created a comprehensive regulatory regime.  Both Whiting and Hazleton involved laws regulating immigrants in the field of employment in a sphere where Congress has acted and thus underscore the conflict between these two lines of cases. The choice of interpretive principles appears to reflect less a difference in the nature of the regulation than it does the jurisprudential theories of those Justices embracing state prerogatives and those favoring a strong national policy. The Supreme Court majority in Whiting appeared more focused on how IRCA preserved the right of states to regulate through licensing laws than on how state law interfered with IRCA’s protection of workers’ rights to be free from discrimination in hiring based on national origin. This essentially meant ignoring IRCA’s structure, legislative history, and case law emphasizing IRCA’s careful balancing of competing policy goals.   Yet, intriguingly, the Court appears to be doing so less because federal law touched on traditional state police powers than because of the perceived failure of federal enforcement of the immigration laws.   The Court’s decision may signal a new direction on preemption issues, including a willingness to uphold state laws that fill a void in federal enforcement and perhaps a dramatic narrowing of obstacles preemption analysis.

II. Preemption doctrine and the regulation of immigrants

In Hines v. Davidowitz (1941), the Supreme Court emphasized that in the field of immigration, federal interests are paramount, and “that the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution ….”  While this might suggest that any state or local laws targeted at immigrants in areas within the federal domain would be field preempted, in 1976, in De Canas v. Bica the Supreme Court found that while the “[p]ower to regulate immigration is unquestionably exclusively a federal power” precluding all state involvement, not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted . . . .”  Rather, a state law only regulates immigration if it is “essentially a determination of who should or should not be admitted into the country and the conditions under which a legal entrant may remain.”  The Court will likely continue to draw a distinction between laws that regulate immigration and laws that regulate immigrants in areas of traditional state concern, such as employment, health, or safety.

State regulation of immigration implicates field preemption analysis


If a state or local law regulates immigration, field preemption principles may apply and the law should be preempted unless the federal government has delegated power to the state to regulate. During the Bush Administration, several states, beginning with Florida, entered into memoranda of understanding with the federal government allowing state and local police to enforce immigration laws under carefully delineated procedures.  Since then, several states and local governments have taken it upon themselves to perform this function.

S.B. 1070 is one such example, and the provisions allowing police to detain an individual where there is reasonable suspicion to believe the person is in the United States illegally, to arrest without a warrant any person where there is probable cause to believe the person has committed a deportable offense, and those making it a crime for a noncitizen to fail to carry immigration documents, while written in the language of criminal law and procedure, all involve the exercise of the immigration power.  Arizona, in adopting S.B.1070, explicitly assumed the task of regulating immigration because of the perceived failure of the U.S. government to control its borders. Nothing in the Constitution, short of the amendment process, allows states to assume a federal function because they perceive the federal government is not doing its job.


State regulation of immigrants may be expressly or conflict preempted


If Congress acts within its powers, a federal statute will expressly preempt state or local laws if an express preemption provision exists and the law falls within its scope.   In cases involving conflicts preemption, the court should examine whether compliance with state and federal law is a physical impossibility, or whether state law creates an obstacle to achieving the federal objectives.

The continuing utility of express preemption

A state or local law imposing civil or criminal sanctions on employers who hire unauthorized workers should be preempted by IRCA’s express preemption provision, unless it falls squarely within its savings clause.  Thus, a law making it a crime to hire an unauthorized worker, or imposing civil penalties, such as through a $1,000 fine, should be expressly preempted.  Courts should continue to give meaning to IRCA’s express preemption provision and strike down civil or criminal sanctions other than license revocation provisions like LAWA that track federal enforcement standards.

The continuing validity of conflicts preemption

In Whiting, the majority engaged in a textual analysis of the specific language in IRCA’s express preemption provision, and more particularly, the language in the savings clause.    It stated that while it would look at the legislative history to interpret any ambiguities, it would not use the legislative history to create ambiguities.  It thus gave greater weight to the seven words in a parenthetical than it did to the express preemption provision itself, to IRCA’s statutory text, structure, legislative history, and nearly twenty-five years of precedent.  It also suggested that where a savings clause saved a statute from express preemption, it would not engage in a “free-wheeling” inquiry into conflicts preemption.

Unless the Court abandons obstacles preemption altogether, it must consider not only the text of the savings clause, which is relevant for express preemption, but other evidence of Congressional purpose, including any statement of purpose, the content of the legislation as a whole, the structure of the legislation, how the various provisions of a comprehensive regulatory regime fit together, the legislative history, and case law. In Whiting the Court stated that

Whatever the usefulness of relying on legislative history, the arguments against doing do are particularly compelling here . . .Only one of the four House Reports touches on the licensing exception . . . and we have previously dismissed that very report as “a rather slender reed” from “one House of a politically divided Congress.”


Any merit to the Court’s argument regarding the limited value of one House Report in interpreting the savings clause’s licensing language for express preemption purposes should not have been extended to the legislative history as a whole for implied preemption analysis.  In Geier v. American Honda Motor Company (2000), a majority of the Court found that a “savings clause (like the express preemption provision) does not bar the ordinary working of conflict preemption principles.”  The Court in that case indicated that it had repeatedly “decline[d] to give broad effect to savings clauses where doing so would upset the careful regulatory scheme established by federal law.” It wrote that a savings clause should not be interpreted to permit a federal law to “defeat its own objectives,” or to potentially “destroy itself.”

III. Conclusions

The Court’s decisions in Whiting and Hazleton have raised the specter that the Court might uphold S.B.1070 and other Arizona copycat legislation.  The two statutory schemes are quite different, and the Supreme Court’s holding in Whiting should have limited implications for the constitutionality of S.B.1070.  Nonetheless, restrictionists see Whiting as giving a green light to state and local lawmakers.  In light of the Court’s willingness to read the savings clause in IRCA’s express preemption provision broadly, challengers must carefully distinguish LAWA’s license revocation provisions from other copycat provisions and apply the appropriate preemption framework.

One reason frequently given for the proliferation of these laws is the failure of comprehensive immigration reform (CIR).  Perhaps IRCA provides a valuable lesson in this regard.  2007 was the last year where Congress seriously pursued CIR.  Like IRCA, that bill attempted to balance a series of competing goals, including border enforcement and the legalization of undocumented workers.  Since then, all proposal for CIR have been largely symbolic, to win points during elections.  It took many years and Congressional sessions before IRCA was enacted into law, and the legislation was a success because it carefully balanced various policy considerations.  Like the movie Groundhog Day, lawmakers need to go back to the drawing board and try yet again to get CIR right.  (Indeed, on June 22, 2011, Senator Menendez (D-NJ) and other Senate Democrats introduced S. 1258, the Comprehensive Immigration Reform Act of 2011.)   It may be the only way to prevent the proliferation of more laws like LAWA and SB1070.

Recommended Citation: Lauren Gilbert, Presuming preemption: Implications of Chamber of Commerce v. Whiting, SCOTUSblog (Jul. 15, 2011, 9:31 AM),