The U.S. Supreme Court, in a 5-3 decision, issued its much-awaited opinion in Chamber of Commerce v. Whiting today. The Court held that Arizona’s sweeping employer sanctions immigration law is a valid exercise of state power that does not run afoul of federal immigration policy. The Whiting decision, promises to have national impact, and may portend even more anti-business legislation in Arizona. While we will be publishing a comprehensive GT Client Alert on the decision, I write simply to note that Whiting may be only the beginning of greater experimentation at the state level with respect to employer-based immigration legislation.
In a nutshell, Arizona’s employer sanctions law establishes licensing penalties for employers found to employ unlawful aliens under certain circumstances. The licensing penalties can result in an employer being prohibited from doing business in Arizona for 10 days, or even permanently depending on the nature and frequency of the immigration violation. The U.S. Chamber of Commerce and other business interests sued the State of Arizona to invalidate the statute, and the statute was upheld at every level, including at the Supreme Court today.
Arizona has been described as a national Petri dish for immigration law. Its employer sanctions law was one of the first of its kind in the U.S. The Court’s decision today provides a blueprint for other states to enact employer sanctions laws based on the Arizona model. Given the prominence of the immigration debate at the national level, I think we can safely assume that other states will follow Arizona’s lead--several did so even before this case reached the Supreme Court. The bigger question will be how far these states (including Arizona) might go to create even more draconian employer-based immigration laws in light of Whiting. I dare say we have not seen the furthest reaches of such state laws as a result of the Court’s decision today.