Speaking of E-Verify, Arizona passed a law in 2007, mandating that businesses use E-Verify, or lose their state business licenses. That law has been upheld by the courts, and finally made its way to the Supreme Court this month.
1. Justice Elena Kagan recused herself from this case. If the Court breaks 4-4, Arizona’s law will be upheld.
2. Justice Sotomayor and Justice Kennedy are the swing justices here. It all comes down to two questions:
a. Does Arizona’s law pre-empt federal law, either because it imposes state sanctions on businesses, or because it imposes a requirement – the use of E-Verify, not just the employee’s I-9 form – that goes beyond federal law.
b. Is Arizona is allowed to go beyond federal law, under the discretion granted to states to license businesses.
From what I could tell, Justice Sotomayor seems to believe that Arizona’s law is unconstitutional because its adjudication requirement (requiring the use of E-Verify in addition to the I-9) is pre-empted by federal law requiring only the use of the I-9.
Justice Kennedy seems to believe that Arizona’s law does go beyond federal law, but that’s OK because of Arizona’s right to imposes conditions on business licenses.
Either way, this case will break 5-3 in favor of Arizona, or 4-4 (with Justice Kennedy voting with the liberals.) So the law will be upheld, and that will open the floodgates to other states, and an eventual federal requirement to use E-Verify as well.
For those who don’t want to read the entire transcript, here are Justice Kennedy’s questions during argument:
JUSTICE KENNEDY: Well, when I picked up this — this brief and looked at this case, I thought: Oh, well, licensing, that’s a defined term; I’ll look in Corpus Juris Secundum or ALR or something. But it23 really isn’t. Your brief indicates you start with dictionaries, fair enough. You indicate what Federal licensing laws are. But I see no limitation on what the State can decide is a license in any jurisprudential principle that you’ve cited.
JUSTICE KENNEDY: Well, why is it — this is the same question you’re answering. Why is it suddenly not a license because the — because the State imposes an additional condition, where it was a license before?
JUSTICE KENNEDY: But the Chief Justice – the Chief Justice can insist on the answer to his own question, but it seems to me his question is why isn’t that still a licensing law?
JUSTICE KENNEDY: But in the child labor example, why isn’t that a — an addition to a regulatory licensing scheme so that it’s a licensing law?
JUSTICE KENNEDY: But underlying Justice Ginsburg’s question is why would Congress want to do that?
JUSTICE KENNEDY: But you are taking the mechanism that Congress said will be a pilot program that is optional, and you are making it mandatory. It seems to me that’s almost a classic example of a State doing something that is inconsistent with the Federal requirement.
JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer’s question, that there is a very substantial difference in Federal and State law on this point. I mean, you’ve told about — you know what lawsuits are about. If you’re — if you’re home free by a driver’s license and Social Security inspection under Federal law and you’re not under State law, that is a difference —
And Justice Sotomayor’s questions:
JUSTICE SOTOMAYOR: — just — just focus the questioning? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law nd hired illegal aliens and was — undocumented aliens and was found to have violated it, that the State can revoke their license, correct to do business?
JUSTICE SOTOMAYOR: So it really doesn’t matter whether they’re revoking their right to do business in the State. And they can only revoke their charter or their articles of incorporation if they’re -8 if they were filed in that State. They wouldn’t have power to revoke a Delaware —
JUSTICE SOTOMAYOR: All right. So it’s stopping them from doing business. So really the only conflict you’re talking about is not the power to stop them from doing business, because you accept that this saving clause gives them the power to do that, to revoke the right to do business; what you’re talking about is a conflict in the adjudication of that issue. Is that correct?
JUSTICE SOTOMAYOR: All right. So I’m — you know, how they define “license” or not is irrelevant to me. Walk me through whether — what expressly pre-empts that adjudication right — or what implicitly pre-empts that adjudication right. Because that is, for me, what the center of this question is.
JUSTICE SOTOMAYOR: But this is — it can’t be uniformity of sanction, because the court permitted licensing sanctions.
JUSTICE SOTOMAYOR: So let’s go back to my question of adjudication. What you’re saying is what’s specifically pre-empted is the right to adjudicate — whether someone has hired undocumented aliens, correct?
JUSTICE SOTOMAYOR: Your argument sounds to me like look at the law and see what its purpose is. If the purpose is to regulate undocumented aliens, then it’s struck down. If it happens to put its revocation provisions in its licensing law, then it’s okay. It doesn’t make much sense — The face of the statute talks only about if you hire undocumented aliens, your license is revoked.
JUSTICE SOTOMAYOR: But the — the saving clause says that it’s okay. Civil or criminal sanctions other than through licensing and similar laws. So, I mean — If we disagree with you, could you answer the question I posed to your adversary, which is what makes the adjudication of status pre-empted?
JUSTICE SOTOMAYOR: At the time the statute was passed, there were many, many State laws that adjudicated revocation of licenses. Perhaps not many have addressed the issue of hiring undocumented aliens, but many State laws existed that independently adjudicated revocations. What in the legislative history or in the words of the statute show that Congress intended in any way to limit those adjudications?
JUSTICE SOTOMAYOR: I’m — doesn’t it frustrate the congressional intent when the Federal law says that the I-9 can be used for no purpose other than the Federal adjudication of whether a violation has occurred or not? Doesn’t it frustrate that law to have the States raise a defense that depends on forcing someone to disclose something that the Federal law protects? I mean, this is a vicious circle. Federal law says you can’t do the I-9 for — you can’t use it for any purpose other than the Federal adjudication. Now you’re creating a defense that says you have to supply us with something that Federal law otherwise protects from disclosure.
JUSTICE SOTOMAYOR: That doesn’t answer my point. Doesn’t it frustrate Federal law when the Federal law says that I-9 can be used for no purpose other than the Federal adjudication of the status of employees? I think that’s —
JUSTICE SOTOMAYOR: So, in answer to Justice Breyer’s earlier question, in fact, relying on the I-9 does not provide a safe harbor, because under the E-Verify system, you can’t just rely on the I-9 forms and statutes; you have to rely on the E-Verify.
JUSTICE SOTOMAYOR: Wouldn’t — wouldn’t it be easier, if that’s Justice Scalia’s concern, to take the Solicitor General’s position, that if you’re adjudicating good faith or intent differently in any way from the Federal Government, that it’s granted? Isn’t that what waiting for an as-applied challenge means, whether or not you are putting different requirements on proving good faith?
JUSTICE SOTOMAYOR: Well, let — then let me ask the question directly. If Arizona’s system does not permit a employer to rely on non-suspect documents, the I-9 documents that are permitted employers to rely on -the Arizona system says, no, you can’t rely on those. Is that pre-empted or not? You can’t rely on I-9, or the Arizona system says — on the I-9 documents. Or the Arizona system says you can’t hire someone who hasn’t been approved under the e-verification system. Is that pre-empted?