CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING ET AL.
No. 09-115
SUPREME COURT OF THE UNITED STATES
Argued December 8, 2010-Decided May 26, 2011
563 U.S. 582
Carter G. Phillips argued the cause for petitioners. With him on the briefs were Eric A. Shumsky, Quin M. Sorenson, Matthew D. Krueger, Robin S. Conrad, Shane B. Kawka, David A. Selden, Julie A. Pace, Heidi Nunn-Gilman, Burt M. Rublin, Daniel Pochoda, Lucas Guttentag, Jennifer Chang Newell, Stephen P. Berzon, Jonathan Weissglass, Ste-
Acting Solicitor General Katyal argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorneys General West and Perez, Deputy Assistant Attorney General Bagenstos, William M. Jay, Mark L. Gross, and Nathaniel S. Pollock.
Mary R. O‘Grady, Solicitor General of Arizona, argued the cause for respondents. With her on the brief were Terry Goddard, Attorney General, Kathleen P. Sweeney and Christopher A. Munns, Assistant Attorneys General, Roger W. Hall, Eileen Gilbride, and Daniel S. Jurkowitz.*
*Briefs of amici curiae urging reversal were filed for the Asian American Justice Center et al. by Kevin M. Fong, Pamela S. Karlan, Karen K. Narasaki, Steven M. Freeman, Steven C. Sheinberg, Kenneth Kimerling, Cesar A. Perales, Sarah C. Crawford, Audrey Wiggins, Christopher Ho, Araceli Martinez-Olguin, Rebecca Smith, and Mary Bauer; for Business Organizations by Walter Dellinger and Sri Srinivasan; for the Equal Employment Advisory Council by Rae T. Vann and Judith A. Lampley; for the National Immigrant Justice Center et al. by Linda T. Coberly, Gene C. Schaerr, and Steffen N. Johnson; for the Service Employees International Union by Leon Dayan and Laurence Gold; and for Representative Romano L. Mazzoli et al. by Paul M. Smith and Lindsay C. Harrison.
Briefs of amici curiae urging affirmance were filed for the State of Missouri et al. by Chris Koster, Attorney General of Missouri, James R. Layton, Solicitor General, Jeremiah J. Morgan, Deputy Solicitor General, and Arax R. Corn, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Dustin McDaniel of Arkansas, Steve Six of Kansas, James D. Caldwell of Louisiana, Michael A. Cox of Michigan, Jim Hood of Mississippi, Jon Bruning of Nebraska, Wayne Stenehjem of North Dakota, Henry D. McMaster of South Carolina, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, and Kenneth T. Cuccinelli II of Virginia; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, John P. Tuskey, and Laura B. Hernandez; for the American Unity Legal Defense Fund by Barnaby W. Zall; for the Eagle Forum Education & Legal Defense Fund by Lawrence J. Joseph; for the Immigration Reform Law Institute by Michael M. Hethmon; for NumbersUSA Education &
CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Parts II-B and III-B.†
Federal immigration law expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.”
I
A
In 1952, Congress enacted the Immigration and Nationality Act (INA),
In the years following the enactment of the INA, several States took action to prohibit the employment of individuals
We first addressed the interaction of federal immigration law and state laws dealing with the employment of unauthorized aliens in De Canas, 424 U. S. 351. In that case, we recognized that the “[p]ower to regulate immigration is unquestionably . . . a federal power.” Id., at 354. At the same time, however, we noted that the “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State,” id., at 356, that “prohibit[ing] the knowing employment . . . of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [the State‘s] police power,” ibid., and that the Federal Government had “at best” expressed “a peripheral concern with [the] employment of illegal entrants” at that point in time, id., at 360. As a result, we declined to hold that a state law assessing civil fines for the employment of unauthorized aliens was preempted by federal immigration law.
Ten years after De Canas, Congress enacted the Immigration Reform and Control Act (IRCA),
To facilitate compliance with this prohibition, IRCA requires that employers review documents establishing an employee‘s eligibility for employment.
Employers that violate IRCA‘s strictures may be subjected to both civil and criminal sanctions. Immigration and Customs Enforcement, an entity within the Department of Homeland Security, is authorized to bring charges against a noncompliant employer under
IRCA also restricts the ability of States to combat employment of unauthorized workers. The Act expressly preempts “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.”
In 1996, in an attempt to improve IRCA‘s employment verification system, Congress created three experimental complements to the I-9 process as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),
In the absence of a prior violation of certain federal laws, IIRIRA prohibits the Secretary of Homeland Security from “requir[ing] any person or . . . entity” outside the Federal
B
Acting against this statutory and historical background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws,”
Under the Arizona law, if an individual files a complaint alleging that an employer has hired an unauthorized alien, the attorney general or the county attorney first verifies the employee‘s work authorization with the Federal Government pursuant to
When a complaint is brought against an employer under Arizona law, “the court shall consider only the federal government‘s determination pursuant to”
A first instance of “knowingly employ[ing] an unauthorized alien” requires that the court order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of three years.
For a first intentional violation, the court must order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of five years.
The Arizona law also requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” by using E-Verify.
C
The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber of Commerce or Chamber) filed a pre-enforcement suit in federal court against those charged with administering the Arizona law: more than a dozen Arizona county attorneys, the Governor of Arizona, the Arizona attorney general, the Arizona registrar of contractors, and the director of the Arizona Department of Revenue (collectively Arizona).4
The District Court held that Arizona‘s law was not preempted. 534 F. Supp. 2d 1036. It found that the plain language of IRCA‘s preemption clause did not preempt the Arizona law because the state law does no more than impose licensing conditions on businesses operating within the State. Id., at 1045-1046. With respect to E-Verify, the court concluded that although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. Id., at 1055-1057. The Court of Appeals affirmed the District Court in all respects, holding that Arizona‘s law was a “licensing and similar law[]” falling within IRCA‘s saving clause and that none of the state law‘s challenged provisions was “expressly or impliedly preempted by federal policy.” 558 F. 3d, at 860, 861, 866.
We granted certiorari. 561 U. S. 1024 (2010).
II
The Chamber of Commerce argues that Arizona‘s law is expressly preempted by IRCA‘s text and impliedly preempted because it conflicts with federal law. We address each of the Chamber‘s arguments in turn.
A
When a federal law contains an express preemption clause, we “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.” CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993).
IRCA expressly preempts States from imposing “civil or criminal sanctions” on those who employ unauthorized
Apart from that general definition, the Arizona law specifically includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State.
A license is “a right or permission granted in accordance with law . . . to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” Webster‘s Third New International Dictionary 1304 (2002). Articles of incorporation and certificates of partnership allow the formation of legal entities and permit them as such to engage in business and transactions “which but for such” authorization “would be unlawful.” Ibid.; see
The Chamber and the United States as amicus argue that the Arizona law is not a “licensing” law because it operates only to suspend and revoke licenses rather than to grant them. Again, this construction of the term runs contrary to the definition that Congress itself has codified. See
The Chamber also submits that the manner in which Congress amended a related statute when enacting IRCA supports a narrow interpretation of the saving clause. The Migrant and Seasonal Agricultural Worker Protection Act (AWPA),
The Chamber asserts that IRCA‘s amendment of AWPA shows that Congress meant to allow state licensing sanctions only after a federal IRCA adjudication, just as adverse action under AWPA can now be taken only through IRCA‘s procedures. But the text of IRCA‘s saving clause says nothing about state licensing sanctions being contingent on prior federal adjudication, or indeed about state licensing processes at all. The simple fact that federal law creates procedures for federal investigations and adjudications culminat-
In much the same vein, the Chamber argues that Congress‘s repeal of “AWPA‘s separate prohibition concerning unauthorized workers belies any suggestion that IRCA meant to authorize each of the 50 States . . . to impose its own separate prohibition,” and that Congress instead wanted uniformity in immigration law enforcement. Brief for Petitioners 36. JUSTICE BREYER also objects to the departure from “one centralized enforcement scheme” under federal law. Post, at 617 (dissenting opinion). But Congress expressly preserved the ability of the States to impose their own sanctions through licensing; that-like our federal system in general-necessarily entails the prospect of some departure from homogeneity. And as for “separate prohibition[s],” it is worth recalling that the Arizona licensing law is based exclusively on the federal prohibition-a court reviewing a complaint under the Arizona law may “consider only the federal government‘s determination” with respect to “whether an employee is an unauthorized alien.”
Even more boldly, the Chamber contends that IRCA‘s saving clause was intended to allow States to impose licensing sanctions solely on AWPA-related farm contracting licensees. AWPA specifically recognized that federal regulation of farm contracting licensing was only “intended to supplement State law,”
The Chamber argues that its textual and structural arguments are bolstered by IRCA‘s legislative history. We have already concluded that Arizona‘s law falls within the plain text of IRCA‘s saving clause. And, as we have said before, Congress‘s “authoritative statement is the statutory text, not the legislative history.” Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 149-150, n. 4 (2002). Whatever the usefulness of relying on legislative history materials in general, the arguments against doing so are particularly compelling here. Beyond verbatim recitation of the statutory text, all of the legislative history documents related to IRCA save one fail to discuss the saving clause at all. The Senate Judiciary Committee Report on the Senate version of the law does not comment on it. See S. Rep. No. 99-132 (1985). Only one of the four House Reports on the law touches on the licensing exception, see H. R. Rep. No. 99-682, pt. 1, p. 58 (1986), and we have previously dismissed that very report as “a rather slender reed” from “one House of a politically divided Congress.” Hoffman, supra, at 149-150, n. 4. And the Conference Committee Report does not discuss the scope of IRCA‘s preemption provision in any way. See H. Conf. Rep. No. 99-1000 (1986).6
IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others. We hold that Arizona‘s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.
B
As an alternative to its express preemption argument, the Chamber contends that Arizona‘s law is impliedly preempted because it conflicts with federal law. At its broadest level, the Chamber‘s argument is that Congress “intended the federal system to be exclusive,” and that any state system therefore necessarily conflicts with federal law. Brief for Petitioners 39. But Arizona‘s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws. Given that Congress spe-
And here Arizona went the extra mile in ensuring that its law closely tracks IRCA‘s provisions in all material respects. The Arizona law begins by adopting the federal definition of who qualifies as an “unauthorized alien.” Compare
Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, and “shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.”
The federal determination on which the State must rely is provided under
From this basic starting point, the Arizona law continues to trace the federal law. Both the state and federal law prohibit “knowingly” employing an unauthorized alien. Compare
The Arizona law provides employers with the same affirmative defense for good-faith compliance with the I-9 process as does the federal law. Compare
Apart from the mechanics of the Arizona law, the Chamber argues more generally that the law is preempted because it upsets the balance that Congress sought to strike when enacting IRCA. In the Chamber‘s view, IRCA reflects Congress‘s careful balancing of several policy considerations—
As an initial matter, the cases on which the Chamber relies in advancing this argument all involve uniquely federal areas of regulation. See American Ins. Assn. v. Garamendi, 539 U.S. 396, 401, 405-406 (2003) (Presidential conduct of foreign policy); Crosby v. National Foreign Trade Council, 530 U.S. 363, 373-374 (2000) (foreign affairs power); Buckman, supra, at 352 (fraud on a federal agency); United States v. Locke, 529 U.S. 89, 97, 99 (2000) (regulation of maritime vessels); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 143-144 (1989) (patent law). Regulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern.
Furthermore, those cases all concern state actions that directly interfered with the operation of the federal program. In Buckman, for example, the Court determined that allowing a state tort action would cause applicants before a federal agency “to submit a deluge of information that the [agency] neither wants nor needs, resulting in additional burdens on the [agency‘s] evaluation of an application,” and harmful delays in the agency process. 531 U. S., at 351. In Garamendi, a state law imposing sanctions on insurance companies directly “thwart[ed] the [Federal] Government‘s policy of repose” for insurance companies that participated in an international program negotiated by the President. 539 U. S., at 425. Crosby involved a state law imposing sanctions on any entity doing business with Burma, a law that left the President with “less to offer and less economic and
License suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime. Numerous Arizona laws provide for the suspension or revocation of licenses for failing to comply with specified state laws. See, e. g.,
The Chamber and JUSTICE BREYER assert that employers will err on the side of discrimination rather than risk the “‘business death penalty‘” by “hiring unauthorized workers.” Post, at 617 (dissenting opinion); see Brief for Petitioners 3, 35. That is not the choice. License termination is not an available sanction simply for “hiring unauthorized workers.” Only far more egregious violations of the law trigger that consequence. The Arizona law covers only
As the Chamber points out, IRCA has its own antidiscrimination provisions, see
All that is required to avoid sanctions under the Legal Arizona Workers Act is to refrain from knowingly or intentionally violating the employment law. Employers enjoy safe harbors from liability when they use the I-9 system and E-Verify—as Arizona law requires them to do. The most rational path for employers is to obey the law—both the law barring the employment of unauthorized aliens and the law prohibiting discrimination—and there is no reason to suppose that Arizona employers will choose not to do so.
As with any piece of legislation, Congress did indeed seek to strike a balance among a variety of interests when it enacted IRCA. Part of that balance, however, involved allocating authority between the Federal Government and
Of course Arizona hopes that its law will result in more effective enforcement of the prohibition on employing unauthorized aliens. But in preserving to the States the authority to impose sanctions through licensing laws, Congress did not intend to preserve only those state laws that would have no effect. The balancing process that culminated in IRCA resulted in a ban on hiring unauthorized aliens, and the state law here simply seeks to enforce that ban.
Implied preemption analysis does not justify a “freewheeling judicial inquiry into whether a state statute is in tension with federal objectives“; such an endeavor “would undercut the principle that it is Congress rather than the courts that pre-empts state law.” Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 111 (1992) (KENNEDY, J., concurring in part and concurring in judgment); see Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984). Our precedents “establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” Gade, supra, at 110. That threshold is not met here.
III
The Chamber also argues that Arizona‘s requirement that employers use the federal E-Verify system to determine whether an employee is authorized to work is impliedly preempted. In the Chamber‘s view, “Congress wanted to develop a reliable and non-burdensome system of work-authorization verification” that could serve as an alternative to the I-9 procedures, and the “mandatory use of E-Verify impedes that purpose.” 558 F. 3d, at 866.
We begin again with the relevant text. The provision of IIRIRA setting up the program that includes E-Verify contains no language circumscribing state action. It does, however, constrain federal action: Absent a prior violation of federal law, “the Secretary of Homeland Security may not require any person or other entity [outside of the Federal Government] to participate in a pilot program” such as E-Verify.
The Federal Government recently argued just that, and approvingly referenced Arizona‘s E-Verify law when doing so. In 2008, an Executive Order mandated that executive agencies require federal contractors to use E-Verify as a condition of receiving a federal contract. See Exec. Order No. 13465, 73 Fed. Reg. 33286 (2008). When that order and its implementing regulation were challenged, the Government pointed to Arizona‘s E-Verify mandate as an example of a permissible use of that system: “[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.” Defendants’ Reply Memorandum in Support of Their Motion for Summary Judgment in No. 8:08-cv-03444 (D Md.), p. 7 (emphasis added), appeal dism‘d, No. 09-2006 (CA4, Dec. 14, 2009).
Arizona‘s use of E-Verify does not conflict with the federal scheme. The Arizona law requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” through E-Verify.
B
Congress‘s objective in authorizing the development of E-Verify was to ensure reliability in employment authorization verification, combat counterfeiting of identity documents, and protect employee privacy.
In fact, the Federal Government has consistently expanded and encouraged the use of E-Verify. When E-Verify was created in 1996, it was meant to last just four years and it was made available in only six States.
The Chamber contends that “if the 49 other States followed Arizona‘s lead, the state-mandated drain on federal
The Chamber has reservations about E-Verify‘s reliability, see Brief for Petitioners 49, n. 27, but again the United States disagrees. The Federal Government reports that “E-Verify‘s successful track record . . . is borne out by findings documenting the system‘s accuracy and participants’ satisfaction.” Brief for United States as Amicus Curiae 31. Indeed, according to the Government, the program is “the best means available to determine the employment eligibility of new hires.” U. S. Dept. of Homeland Security, U. S. Citizenship and Immigration Services, E-Verify User Manual for Employers 4 (Sept. 2010).12
IRCA expressly reserves to the States the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws. In exercising that authority, Arizona has taken the route least likely to cause tension with federal law. It uses the Federal Government‘s own definition of “unauthorized alien,” it relies solely on the Federal Government‘s own determination of who is an unauthorized alien, and it requires Arizona employers to use the Federal Government‘s own system for checking employee status. If even this gives rise to impermissible conflicts with federal law, then there really is no way for the State to implement licensing sanctions, contrary to the express terms of the saving clause.
Because Arizona‘s unauthorized alien employment law fits within the confines of IRCA‘s saving clause and does not conflict with federal immigration law, the judgment of the United States Court of Appeals for the Ninth Circuit is affirmed.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or decision of this case.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting.
The federal Immigration Reform and Control Act of 1986 (Act or IRCA) pre-empts “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.”
Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State.
Dictionary definitions of the word “licensing” are, as the majority points out, broad enough to include virtually any permission that the State chooses to call a “license.” See ante, at 595 (relying on a dictionary and the federal Administrative Procedure Act). But neither dictionary definitions nor the use of the word “license” in an unrelated statute can demonstrate what scope Congress intended the word “licensing” to have as it used that word in this federal statute. Instead, statutory context must ultimately determine the word‘s coverage. Context tells a driver that he cannot produce a partnership certificate when a policeman stops the car and asks for a license. Context tells all of us that “licensing” as used in the Act does not include marriage li-
I
To understand how the majority‘s interpretation of the word “licensing” subverts the Act, one must understand the basic purposes of the pre-emption provision and of the Act itself. Ordinarily, an express pre-emption provision in a federal statute indicates a particular congressional interest in preventing States from enacting laws that might interfere with Congress’ statutory objectives. See International Paper Co. v. Ouellette, 479 U. S. 481, 494 (1987). The majority‘s reading of the provision‘s “licensing” exception, however, does the opposite. It facilitates the creation of “obstacle[s] to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 373 (2000) (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941)).
A
Essentially, the federal Act requires employers to verify the work eligibility of their employees. And in doing so, the Act balances three competing goals. First, it seeks to discourage American employers from hiring aliens not authorized to work in the United States. H. R. Rep. No. 99-682, pt. 1, p. 56 (1986).
Third, the Act seeks to prevent employers from disfavoring job applicants who appear foreign. Reiterating longstanding antidiscrimination concerns, the House Committee Report explained:
“Numerous witnesses . . . have expressed their deep concern that the imposition of employer sanctions will cause extensive employment discrimination against Hispanic-Americans and other minority group members. These witnesses are genuinely concerned that employers, faced with the possibility of civil and criminal penalties, will be extremely reluctant to hire persons because of their linguistic or physical characteristics.” H. R. Rep. No. 99-682, at 68.
See also
B
The Act reconciles these competing objectives in several ways:
First, the Act prohibits employers from hiring an alien knowing that the alien is unauthorized to work in the United States.
A later amendment to the law also allows an employer to verify an employee‘s work eligibility through an Internet-based federal system called E-Verify. If the employer does so, he or she will receive the benefit of a rebuttable presumption of compliance.
Third, the Act creates a central enforcement mechanism. The Act directs the Attorney General to establish a single set of procedures for receiving complaints, investigating those complaints that “have a substantial probability of validity,” and prosecuting violations.
Fourth, the Act makes it “an unfair immigration-related employment practice . . . to discriminate against any individual” in respect to employment “because of such individual‘s national origin.”
Fifth, the Act sets forth a carefully calibrated sanction system. The penalties for hiring unauthorized aliens are graduated to prevent the Act from unduly burdening em-
As importantly, the Act limits or removes any incentive to discriminate on the basis of national origin by setting antidiscrimination fines at equivalent levels: $375-$3,200 per worker for first-time offenders, and $3,200-$16,000 per worker for repeat offenders.
C
Now, compare and contrast Arizona‘s statute. As I have said, that statute applies to virtually all business-related licenses, other than professional licenses.
First, the state statute seriously threatens the federal Act‘s antidiscriminatory objectives by radically skewing the relevant penalties. For example, in the absence of the Arizona statute, an Arizona employer who intentionally hires an unauthorized alien for the second time would risk a maximum penalty of $6,500.
This is no idle concern. Despite the federal Act‘s efforts to prevent discriminatory practices, there is evidence that four years after it had become law, discrimination was a serious problem. In 1990, the General Accounting Office identified “widespread discrimination . . . as a result of” the Act. Report to the Congress, Immigration Reform: Employer Sanctions and the Question of Discrimination 3, 37, 80. Sixteen percent of employers in Los Angeles admitted that they applied the I-9 requirement “only to foreign-looking or foreign-sounding persons,” and 22 percent of Texas employers reported that they “began a practice to (1) hire only persons born in the United States or (2) not hire persons with temporary work eligibility documents” because of the Act. Id., at 41-43. If even the federal Act (with its carefully balanced penalties) can result in some employers discriminating, how will employers behave when erring on the side of discrimination leads only to relatively small fines, while erring on the side of hiring unauthorized workers leads to the “business death penalty“?
Second, Arizona‘s law subjects lawful employers to increased burdens and risks of erroneous prosecution. In addition to the Arizona law‘s severely burdensome sanctions, the law‘s procedures create enforcement risks not present in the federal system. The federal Act creates one centralized enforcement scheme, run by officials versed in immigration law and with access to the relevant federal documents. The upshot is an increased likelihood that federal officials (or the employer) will discover whether adverse information flows from an error-prone source and that they will proceed ac-
Contrast the enforcement system that Arizona‘s statute creates. Any citizen of the State can complain (anonymously or otherwise) to the state attorney general (or any county attorney), who then ”shall investigate,”
Again, this matter is far from trivial. Studies of one important source of Government information—the E-Verify system—describe how the federal administrative process corrected that system‘s tentative “unemployable” indications 18 percent of the time. This substantial error rate is not a function of a small sample size. See ante, at 610, n. 12. Rather, data from one fiscal year showed 46,921 workers initially rejected but later “confirmed as work authorized“—all while E-Verify was used by only a fraction of the Nation‘s employers. U. S. Citizenship and Immigration Services, Statistics and Reports, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=7c579589cdb76210VgnVCM100000b92ca60aRCRD (Feb. 4, 2011) (as visited May 18, 2011, and available in Clerk of Court‘s case file). That is to say nearly one in five times that the E-Verify system suggested that an individual was not lawfully employable (i. e., returned a tentative nonconfirmation of work authorization), the system was wrong; and subsequent review in the federal administrative process de-
A related provision of the state law aggravates the risk of erroneous prosecutions. The state statute says that in “determining whether an employee is an unauthorized alien, the court shall consider only the federal government‘s determination pursuant to 8 [U. S. C.] § 1373(c).”
So what is the employer to do? What statute gives an employer whom the State proceeds against in state court the right to conduct discovery against the Federal Government? The Arizona statute, like the federal statute, says that the employer‘s use of an I-9 form provides a defense. But there is a hitch. The federal Act says that neither the I-9 form, nor “any information contained in or appended to” the form, “may . . . be used for purposes other than for enforcement of” this federal Act.
Nor does the Arizona statute facilitate the presentation of a defense when it immediately follows (1) its statement that “the court shall consider only the federal government‘s determination” when it considers “whether an employee is an unauthorized alien” with (2) its statement that “[t]he federal government‘s determination creates a rebuttable presumption of the employee‘s lawful status.”
And that is my basic point. Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination. And by defining “licensing” so broadly, by bringing nearly all businesses within its scope, Arizona‘s statute creates these effects statewide.
Why would Congress, after deliberately limiting ordinary penalties to the range of a few thousand dollars per illegal worker, want to permit far more drastic state penalties that would directly and mandatorily destroy entire businesses? Why would Congress, after carefully balancing sanctions to avoid encouraging discrimination, want to allow States to
II
The federal licensing exception cannot apply to a state statute that, like Arizona‘s statute, seeks to bring virtually all articles of incorporation and partnership certificates within its scope. I would find the scope of the exception to federal pre-emption to be far more limited. Context, purpose, and history make clear that the “licensing and similar laws” at issue involve employment-related licensing systems.
The issuance of articles of incorporation and partnership certificates and the like have long had little or nothing to do with hiring or “employment.” Indeed, Arizona provides no evidence that any State, at the time the federal Act was enacted, had refused to grant or had revoked, say, partnership certificates, in light of the partners’ hiring practices of any kind, much less the hiring of unauthorized aliens. See
To read the exception as covering laws governing corporate charters and partnership certificates (which are not
Such laws might prove more effective in stopping the hiring of unauthorized aliens. But they are unlikely to do so consistent with Congress’ other critically important goals, in particular, Congress’ efforts to protect from discrimination legal workers who look or sound foreign. That is why we should read the federal exemption‘s “licensing” laws as limited to those that involve the kind of licensing that, in the absence of this general state statute, would nonetheless have some significant relation to employment or hiring practices. Otherwise we read the federal “licensing” exception as authorizing a State to undermine, if not to swallow up, the federal pre-emption rule.
III
I would therefore read the words “licensing and similar laws” as covering state licensing systems applicable primarily to the licensing of firms in the business of recruiting or
The Act‘s history supports this interpretation. Ever since 1964, the Federal Government has administered statutes that create a federal licensing scheme for agricultural labor contractors, firms that specialize in recruiting agricultural workers and referring them to farmers for a fee.
Most important, and unlike the 1986 Act before us, the earlier agricultural labor contracting statutes did not pre-empt similar state laws. To the contrary, the earlier Acts were “intended to supplement State law” and did not “excuse any person from compliance with appropriate State law and regulation.”
In 1986, Congress (when enacting the Act now before us) focused directly upon the earlier federal agricultural labor contractor licensing system. And it changed that earlier system by including a series of conforming amendments in the Act. One amendment removes from the earlier statutes the specific prohibition against hiring unauthorized aliens. It thereby makes agricultural labor contractors subject to the Act‘s similar general prohibition against such hiring.
So far, the conforming amendments make sense. But have they not omitted an important matter? Prior to 1986, States as well as the Federal Government could license agricultural labor contractors. Should the 1986 statute not say whether Congress intended that dual system to continue? The answer is that the 1986 Act does not omit this matter. It answers the coexistence question directly with the parenthetical phrase we are now considering, namely, the
As of 1986, there were strong reasons for permitting that dual system to continue in this specialized area. Dual enforcement had proved helpful in preventing particularly serious employment abuses. See, e. g., 128 Cong. Rec. 24090 (1982) (reflecting concerns that agricultural workers were “housed in hovels; . . . subjected to physical abuse and kept in virtual slavery“). And because the contractors’ business consists of providing labor forces, their hiring of authorized workers is closely related to their general fitness to do business. See S. Rep. No. 202, 88th Cong., 1st Sess., 1 (1963) (explaining that farm labor contractor registration laws are needed to prevent “irresponsible crew leaders” from “exploit[ing] . . . farmers“); Martin, Good Intentions Gone Awry: IRCA and U. S. Agriculture, 534 Annals Am. Acad. Pol. & Soc. Sci. 44, 49 (1994) (describing how farmers who relied on contractors risked losing their labor forces to immigration raids). Dual enforcement would not create a federal/state penalty disparity, for federal systems as well as state systems provide for license revocation. Experience had shown that dual enforcement had not created any serious conflict or other difficulty. And in light of the specialized nature and comparatively small set of businesses subject to dual enforcement, to permit licensing of that set of businesses would not seriously undermine the objectives of the Act or its pre-emption provision.
Thus, it is not surprising that the legislative history of the 1986 Act‘s pre-emption provision says that the licensing exception is about the licensing of agricultural labor contractors. The House Report on the Act, referring to the licensing exception, states that the Committee did “not intend to preempt licensing or ‘fitness to do business laws,’ such as
The Act‘s language, while not requiring this interpretation, is nonetheless consistent with limiting the scope of the phrase in this way. Context can limit the application of the term “licensing” to particular types of licensing. The Act‘s subject matter itself limits the term to employment-related licensing. And the Act‘s specific reference to those who “recruit or refer for a fee for employment, unauthorized aliens,” is consistent with employment-related licensing that focuses primarily upon labor contracting businesses.
Thus, reading the phrase as limited in scope to laws licensing businesses that recruit or refer workers for employment is consistent with the statute‘s language, with the relevant history, and with other statutory provisions in the Act. That reading prevents state law from undermining the Act and from turning the pre-emption clause on its head. That is why I consider it the better reading of the statute.
IV
Another section of the Arizona statute requires “every employer, after hiring an employee,” to “verify the employment eligibility of the employee” through the Federal Government‘s E-Verify program.
The federal statute itself makes clear that participation in the E-Verify program is voluntary. The statute‘s relevant section bears the title “Voluntary Election to Participate in a Pilot Program.” IIRIRA §402, note following
Congress had strong reasons for insisting on the voluntary nature of the program. E-Verify was conceived as, and remains, a pilot program. Its database consists of tens of millions of Social Security and immigration records kept by the Federal Government. These records are prone to error. See, e. g., Office of the Inspector General, Social Security Administration, Congressional Response Report: Accuracy of the Social Security Administration‘s Numident File 12 (2006) (hereinafter Social Security Report) (estimating that 3.3 million naturalized citizens are misclassified in a Social Security database used by E-Verify); GAO, Employment Verification: Federal Agencies Have Taken Steps To Improve E-Verify, but Significant Challenges Remain 16 (GAO-11-146, 2010) (hereinafter GAO Report) (noting that “erroneous [nonconfirmations] related to name inconsistencies . . . remain an issue” that “can create the appearance of discrimination
The E-Verify program is still a pilot program, as a matter of statute and practice. See IIRIRA §401; Letter from H. Couch to R. Stana (Dec. 8, 2010) (discussing aspects of E-Verify that have yet to be implemented). The effects of the program‘s efforts to take account of, and correct for, potential errors remain uncertain. Congress could decide that, based on the results of the pilot, E-Verify should become a mandatory program. But it has not yet made that determination. And in making that decision, it will have to face a number of questions: Will workers receiving tentative negative verdicts understand the possibility of administrative challenge? Will they make the effort to invoke that process, say, traveling from a farm to an urban Social Security office? Will employers prove willing to undergo the financial burden of supporting a worker who might lose the challenge? Will employers hesitate to train those workers during the time they bring their challenges? Will employers simply hesitate to hire workers who might receive an initial negative verdict—more likely those who look or sound foreign? Or will they find ways to dismiss those workers? These and other unanswered questions convinced Congress to make E-Verify a pilot program, to commission continuous study and evaluation, and to insist that participation be voluntary.
In co-opting a federal program and changing the key terms under which Congress created that program, Arizona‘s mandatory state law simply ignores both the federal language and the reasoning it reflects, thereby posing an “obstacle to the accomplishment” of the objectives Congress’ statute evinces. Crosby, supra, at 373 (quoting Hines, supra, at 67).
The majority reaches a contrary conclusion by pointing out (1) that Congress has renewed the E-Verify program several
The short, and, I believe, conclusive answers to these objections are: (1) Congress has kept the language of the statute—and the voluntary nature of the program—the same throughout its program renewals. See
(2) The studies and reports have repeatedly found both (a) that the E-Verify program had achieved greater accuracy, but (b) that problems remain. See, e. g., Social Security Report 11 (estimating that Social Security records contain 4.8 million “discrepancies that could require the numberholder to visit [the Social Security Administration] . . . before employment eligibility would be confirmed“); GAO Report 19 (estimating that, if E-Verify were made mandatory nationwide, 164,000 newly hired workers each year would erroneously be adjudged ineligible to work because of name mismatches, as when the worker‘s “first or last name is incorrectly spelled in government databases or on identification documents“). And it is up to Congress, not to Arizona or this Court, to determine when the federally designed and federally run E-Verify program is ready for expansion.
(3) Federal contractors are a special group of employers, subject to many special requirements, who enter voluntarily into a special relation with the Government. For the Federal Government to mandate that a special group participate in the E-Verify program tells us little or nothing about the effects of a State‘s mandating that nearly every employer within the State participate—as Arizona has done. And insofar as we have not determined whether the Executive was
(4) There is no reason to imply negatively from language telling the Secretary not to make the program mandatory, permission for the States to do so. There is no presumption that a State may modify the operation of a uniquely federal program like E-Verify. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 347-348 (2001); Boyle v. United Technologies Corp., 487 U. S. 500, 504-505 (1988); see also post, at 643-644 (SOTOMAYOR, J., dissenting). The remaining federal statutory language makes clear the voluntary nature of the E-Verify program. Arizona‘s plan would undermine that federal objective.
For these reasons I would hold that the federal Act, including its E-Verify provisions, pre-empts Arizona‘s state law. With respect, I dissent from the majority‘s contrary holdings.
JUSTICE SOTOMAYOR, dissenting.
In enacting the
I would also hold that federal law pre-empts the provision of the Arizona Act making mandatory the use of E-Verify, the federal electronic verification system. By requiring Arizona employers to use E-Verify, Arizona has effectively made a decision for Congress regarding use of a federal resource, in contravention of the significant policy objectives motivating Congress’ decision to make participation in the E-Verify program voluntary.
I
A
I begin with the plain text of IRCA‘s pre-emption clause. IRCA expressly pre-empts States from “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.”1 Ibid. The Arizona Act, all agree, imposes civil sanctions upon those who employ unauthorized aliens. The Act thus escapes express pre-emption only if it falls within IRCA‘s parenthetical saving clause for “licensing and similar laws.” Ibid.
The saving clause is hardly a paragon of textual clarity. IRCA does not define “licensing,” nor does it use the word “licensing” in any other provision. Laws that impose sanc-
B
Because the plain text of the saving clause does not resolve the question, it is necessary to look to the text of IRCA as a whole to illuminate Congress’ intent. See Dolan, 546 U. S., at 486 (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute“); Ali v. Federal Bureau of Prisons, 552 U. S. 214, 222 (2008) (construction of a statutory term “must, to the extent possible, ensure that the statutory scheme is coherent and consistent“); Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) (“[St]atutory language
Before Congress enacted IRCA in 1986, a number of States had enacted legislation prohibiting employment of unauthorized aliens. See ante, at 588, and n. 1 (citing 11 such laws). California, for example, prohibited the knowing employment of an alien “who is not entitled to lawful residence in the United States” when “such employment would have an adverse effect on lawful resident workers,” and made violations punishable by fines of $200 to $500. 1971 Cal. Stats. ch. 1442, §1; see also De Canas v. Bica, 424 U. S. 351, 352, n. 1 (1976). Kansas went even further, making it a misdemeanor, punishable by a term of confinement not to exceed one month, to employ a person within Kansas knowing “such person to be illegally within the territory of the United States.”
Congress enacted IRCA amidst this patchwork of state laws. IRCA “‘forcefully’ made combating the employment of illegal aliens central to ‘the policy of immigration law.‘” Hoffman, 535 U. S., at 147 (quoting INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 194, and n. 8 (1991); brackets omitted); see also H. R. Rep. No. 99-682, pt. 1, p. 46 (1986) (“[L]egislation containing employer sanctions is the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens“). As the
Congress made explicit its intent that IRCA be enforced uniformly. IRCA declares that “[i]t is the sense of the Congress that . . . the immigration laws of the United States should be enforced vigorously and uniformly.”
First, and most obviously, Congress expressly displaced the myriad state laws that imposed civil and criminal sanctions on employers who hired unauthorized aliens. See
Second, Congress centralized in the Federal Government enforcement of IRCA‘s prohibition on the knowing employment of unauthorized aliens. IRCA instructs the Attorney General to designate a specialized federal agency unit whose “primary duty” will be to prosecute violations of IRCA.
Third, Congress provided persons “adversely affected” by an agency order with a right of review in the federal courts of appeals.
Finally, Congress created no mechanism for States to access information regarding an alien‘s work authorization status for purposes of enforcing state prohibitions on the employment of unauthorized aliens. The relevant sections of IRCA make no provision for the sharing of work authorization information between federal and state authorities even though access to that information would be critical to a State‘s ability to determine whether an employer has employed an unauthorized alien. In stark contrast, a separate provision in the same title of IRCA creates a verification system by which States can ascertain the immigration status of aliens applying for benefits under programs such as Medicaid and the food stamp program. See
In an attempt to show that Congress intended for the Federal Government to share immigration-related information with the States, Arizona points to a federal statute,
Collectively, these provisions demonstrate Congress’ intent to build a centralized, exclusively federal scheme for determining whether a person has “employ[ed], or recruit[ed]
C
IRCA‘s saving clause must be construed against this backdrop. Focusing primarily on the text of the saving clause, Arizona and the majority read the clause to permit States to determine themselves whether a person has employed an unauthorized alien, so long as they do so in connection with licensing sanctions. See ante, at 597-599. This interpretation overlooks the broader statutory context and renders the statutory scheme “[in]coherent and [in]consistent.” Ali, 552 U. S., at 222.
Under the majority‘s reading of the saving clause, state prosecutors decide whether to commence licensing-related proceedings against a person suspected of employing an unauthorized alien. The majority‘s holding also permits state courts and other tribunals to adjudicate the question whether an employer has employed an unauthorized alien. The Arizona Act illustrates the problems with reading the saving clause to permit such state action. The Act directs prosecutors to verify an employee‘s work authorization with the Federal Government pursuant to
The Arizona Act‘s reliance on
Equally problematic is the fact that employers charged under a state enforcement scheme with hiring unauthorized aliens are foreclosed from using I-9 forms in their defense in the state proceedings. Like IRCA, the Arizona Act con-
Furthermore, given Congress’ express goal of “unifor[m]” enforcement of “the immigration laws of the United States,”
In sum, the statutory scheme as a whole defeats Arizona‘s and the majority‘s reading of the saving clause. Congress would not sensibly have permitted States to determine for themselves whether a person has employed an unauthorized alien, while at the same time creating a specialized federal procedure for making such a determination, withholding from the States the information necessary to make such a determination, and precluding use of the I-9 forms in nonfederal proceedings. See United States v. Locke, 529 U. S. 89, 106 (2000) (“We decline to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law“).
To render IRCA‘s saving clause consistent with the statutory scheme, I read the saving clause to permit States to impose licensing sanctions following a final federal determination that a person has violated
. . .
I do not mean to suggest that the mere existence of a comprehensive federal scheme necessarily reveals a congressional intent to oust state remedies. Cf. English v. General Elec. Co., 496 U. S. 72, 87 (1990) (“[T]he mere existence of a federal regulatory or enforcement scheme . . . does not by itself imply pre-emption of state remedies“); New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) (rejecting the argument that “pre-emption is to be inferred merely from the comprehensive character of the federal [program]“). Here, Congress has made clear its intent to oust
Under my construction of the saving clause, the Arizona Act cannot escape pre-emption. The Act authorizes Arizona county attorneys to commence actions charging an employer with having employed an unauthorized alien.
II
I agree with the conclusion reached by JUSTICE BREYER in Part IV of his dissenting opinion that federal law impliedly pre-empts the provision in the Arizona Act requiring all Arizona employers to use the federal E-Verify program. See
As we have recently recognized, that a state law makes mandatory something that federal law makes voluntary does
This case, however, is readily distinguishable from cases like Williamson, in which state law regulates relationships between private parties. Here, the Arizona Act directly regulates the relationship between the Federal Government and private parties by mandating use of a federally created and administered resource. This case thus implicates the “uniquely federal interes[t]” in managing use of a federal resource. Boyle v. United Technologies Corp., 487 U. S. 500, 504 (1988) (internal quotation marks omitted); see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 347 (2001) (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law“).
Significant policy objectives motivated Congress’ decision to make use of E-Verify voluntary. In addition to those discussed by JUSTICE BREYER, see ante, at 627-628 (dissenting opinion), I note that Congress considered the cost of a mandatory program. In 2003, when Congress elected to expand E-Verify to all 50 States but declined to require its use, it cited a congressionally mandated report concluding that the annual cost of the pilot program was $6 million, the annual cost of a nationwide voluntary program would be $11 million, and the annual cost of a nationwide mandatory program
The majority highlights the Government‘s statement in its amicus brief that “the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.‘” Ante, at 610 (quoting Brief for United States 34). But “[t]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, 518 U. S., at 494 (internal quotation marks omitted). It matters not whether the Executive Branch believes that
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For these reasons, I cannot agree with either of the Court‘s holdings in this case. I respectfully dissent.
Notes
My reading is also consistent with, though not compelled by, the provisions in IRCA that amended the