As we all know, the word "license" has two different meanings. One, derived from the Latin "licentia", means an excess of freedom, boldness or licentiousness. The other, derived from the Latin "licere", means permitted by law or custom. Both of these definitions were at work in yesterday's (May 26) Supreme Court decision in Chamber of Commerce v. Whiting, holding that Arizona's 2007 law providing for harsh penalties against businesses that employ non-US citizens without work permission is not preempted by federal legislation regulating the same subject.
An unlikely coalition of plaintiffs, including the business establishment, represented by the US Chamber of Commerce, immigrant rights groups, labor unions and the Obama administration itself, whose chief immigration enforcer, DHS Secretary Janet Napolitano is, ironically, the same person who, as governor of Arizona, had signed the law that the administration that she is now a key part of was trying to invalidate, had argued that state legislation regulating employment by unauthorized foreign workers is preempted by federal legislation.
At first glance, this argument might appear to be unassailable. Federal Law (IRCA) expressly prohibits states from imposing civil or criminal sanctions on those who employ "unauthorized aliens". But this provision also contains an exception, one which, as Justice Sotomayor put it in her dissent, may have been meant as a mousehole, but wound up being big enough to let an elephant pass through. This exception, contained in 8 U.S. C. Section 1324a(h)(2), reads "other than through licensing and similar laws".
As Justice Sotomayor also wrote in her dissent, the above savings clause is hardly a model of legislative clarity. IRCA neither defines the word "licensing" nor provides any examples of its use. A license can mean almost anything and everything. Arizona, at least for the purpose of this statute, opted for the everything approach. It defines a license as any permit allowing a business to operate in that state, including articles of incorporation or a certificate of partnership.
While Chief Justice Roberts' opinion points out that Federal law, specifically the Administrative Procedure Act, contains a similarly broad definition of this term, it is noteworthy that Arizona itself has been using a more restrictive definition of the word "license" in its official dealings with the public, one which is at odds with the broad definition it has adopted in the law at issue in the Chamber of Commerce decision. This point, not mentioned in either the Supreme Cout's majority opinion or the two dissenting ones, will be discussed further below.
Based on its broad definition of the word "license", the majority held, in effect, that IRCA's preemption clause had virtually no meaning at all, and that Arizona could do almost anything it wants to punish businesses and workers who run afoul of its strict provisions against employing non-US citizen workers who lack work authorization. As was to be expected, the dissenting justices tried to find a narrower definition of the word "license", but they could not agree on what that was. Justice Breyer argued that, in the context of IRCA and the background of federal regulation over employment of unauthorized foreign workers, "licensing", for the purposes of the above savings clause, means only licensing of employment agencies. The best comment one could make about that argument, in this writer's opinion, would be "nice try".
Justice Sotomayor, in her dissent, argued that the savings clause was not meant to apply until after there had been a formal federal determination that a given employer has violated IRCA. "Nice try" would also be an appropriate comment here. Does this mean, however, that the majority was correct in adopting the broadest possible definition of the term "license"? Not if one looks at the definiton that the State of Arizona is still using on its own website. The Arizona Department of Comerce, a state agency, states the following on its site, www.azcommerce.com:
"In Arizona, not all businesses are required to have a license and some businesses are required to have special licenses, permits, certifications, stc. If you are not sure if your business activity requires a regulatory license or which agency is the correct one for your profession or business, you may wish to visit the AZ.gov Occupational Licenses by Agency or Department, click on the agency title for address and licensing information."
In other words, Arizona, admittedly in a different context, has been using a more restrictive definition and one more consistent with IRCA's apparent purpose of not letting elephants go thorough mouseholes. This more restrictive, but very common definition, and one used not only in Arizona, limits "license" to a permit intended to regulate conduct of a particular type of business or occupation, not just its existence.
Is Arizona bound by a more restrictive definition of a term on its website when its legislature has chosen a broader definition of the same term in a statute? Of course not. But that is not the issue. The issue is which definition Congress can most likely be presumed to have had in mind when it enacted the savings clause ("original intent", if you will), and which one is most consistent with IRCA's purpose and with preserving the entire scheme of federal control over immigration enforcement.
But, in the final analysis, why does all of this matter? Even if the Supreme Court majority adopted an overly broad interpretation of the savings clause, it still could (and should) have invalidated Arizona's employment sanctions law as conflicting with IRCA. There can be no serious doubt that Arizona's law does conflict with IRCA, if not overtly trying to subvert it, as the dissenting justices described at length (though I would not agree with every one of their arguments, especially Justice Sotomayor's tenuous distinction between immigration status and employment authorization status).
The reason that the broad interpretation of "licensing" in the Chamber of Commerce decision should be of such great concern to immigrants and their advocates is that the same reasoning may apply when the Supreme Court finally rules on the meaning of the word "cooperate" in connection with Arizona's even more restrictive and draconian immigration enforcement law, S.B. 1070. As the dissenting opinion in the 9th Circuit's recent decision upholding a District Court's injunction against enforcement of crucial parts of this law makes clear, federal preemption over immigration enforcement might also be rendered meaningless if a state is able to enact its own law under the pretext that it is "cooperating" with the federal government. In applying the doctrine of federal preemption over immigration enforcement, the rule of "licere" may be about to give way to the rule of "licentia".
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.