Comment: EVerify For Everyone - The Supremes just issued their long awaited decision in Chamber of Commerce et al v. Whiting et al (No. 09-115, Supreme Court, May 26, 2011), on Arizona's E-Verify statute (not to be confused with Arizona's much more recent racial profiling statute). The Supreme Court held that Arizona's licensing law is neither expressly pre-empted nor impliedly pre-empted. In other words, states may, within the confines of IRCA, require that beneficiaries of state business licenses use E-Verify, without running afoul of IRCA's anti-discrimination provisions. Now that the Supreme Court has given the green light, we expect that many states, particularly in the South, will rush to enact statutes similar to Arizona's.
A note on ILW.COM's connection to this matter. In a telephone seminar hosted by ILW.COM about 4 years ago, counsel for the legislature of the State of Arizona posed a question to our expert panel on whether a statute constructed in the way that Arizona's ultimately was would pass constitutional muster. The resultant colloquy is now part of the record. Our expert was, of course, Gary Endelman who has consistently called this case correctly. Subsequent to passage of this law, Mr. Endelman believed that the 9th circuit, despite being a notoriously liberal one, would uphold Arizona's statute, and so it subsequently proved. When the case was granted cert, Mr. Endelman once again presciently predicted that should Justice Kagan (who joined the bench relatively recently) recuse herself from this case, then it was exceedingly unlikely that Justice Kennedy would create a divided 4-4 opinion, and asserted instead that Chief Justice Roberts would find a way to write the opinion in such fashion as to encourage Mr. Kennedy to come aboard and create a 5-3 majority. The actual vote on the opinion on the Supreme Court fell exactly as Mr. Endelman predicted. It is due to Mr. Endelman's scholarship on this matter that Immigration Daily has consistently called this case correctly also.
Responding to today's development, Mr. Endelman writes:
This decision is regrettable but hardly surprising and shows the dramatic impact arising from Justice Kagan's recusal. Had she not taken herself out of the case, in all likelihood, there would have been 4 dissenters comprised of the liberal bloc- Breyer, Ginsburg, Sotomayor and Kagan, pared against the 4 hard line conservatives- Thomas, Roberts, Alito and Scalia. Justice Kennedy would have occupied his customary position of holding the decisive vote. In all likelihood, since Justice Kennedy joined CJ Roberts' majority opinion in full without feeling compelled to write his own concurrence, the results would have been the same but it is impossible to predict that with anything approaching certainty.
On the issue of immigration policy however (not immigration law), this decision is likely to cause major political upheaval (again something we have been pointing out for many months). As a practical matter, widespread firings of the undocumented will severely disrupt many industries across the country, and furthermore, with all due respect to what the High Court says, widespread discrimination against Americans of color will almost certainly follow. Therefore - and despite the fact that both political parties have a vested interest in the current status quo – the status quo on immigration will no longer hold. Congress, and even this 112th Congress with a heavily Republican House, will likely have to step to the plate and address our broken immigration system. The most likely end-game is Congress enacting a combination of benefits and enforcement (most likely mandatory E-Verify and DREAM) into law next year. This decision will almost certainly ensure that immigration will play an important role in the next Presidential election, and conceivably in the upcoming Republican primaries.
Arizona, like all the other states who have enacted immigration control laws loudly and constantly argued that it was not attempting to regulate immigration. Their effectiveness in doing that, as well as the High Court's willingness to go along, stems largely from the very limited definition of "immigration" articulated by the late Justice Brennan in De Canas v. Bica, 424 US 351, 353, 359 (1976) which looked almost exclusively to setting the "terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country." Under the De Canas paradigm, immigration did not focus on what happened after admission or arrrival nor did it consider how the actions or conduct of the aliens themselves could be controlled or regulated. Arizona did not attempt to determine who came to the USA or under what terms and conditions but it must certainly sought to influence what they did after they got here. In the world of the 21st century, that is the true definition of "immigration" , one which reflects the great degree to which the nation has moved on since the mid- 1970's and the extent to which the unduly narrow contours of the De Canas definition must be revised to reflect current economic realties. The fact that the advocates of pre-emption did not make this argument the cornerstrone of their appeal produced today's result and was a grievous strategic error whose impact will continue to be felt for quite some to come.
There is never a dull moment in immigration law, stay tuned to Immigration Daily for the latest.
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