In the two years since Arizona Governor Jan Brewer signed into law SB 1070, the state’s far-reaching and controversial immigration bill, numerous states have produced copycat versions of the legislation. While many of these bills have stalled or failed, others have become law and later been challenged in court by the Department of Justice, immigrant rights groups, and representatives of the affected communities. The DOJ’s challenge to SB 1070, in Arizona v. United States, was the first of these cases to reach the Supreme Court, with oral arguments held in April and a decision expected in June.

Arizona may have been the inspiration for this spate of draconian state immigration laws, but it does not bear sole responsibility for the trend. Rather, the Supreme Court played a role in opening this ugly can of worms. In U.S. Chamber of Commerce v. Whiting, a decision issued one year ago this week, the Supreme Court’s conservative majority effectively endorsed the possibility that states could create their own immigration policies.


The story of Whiting begins in 2007, long before SB 1070 was on the horizon, when Governor Brewer signed the Legal Arizona Workers Act (LAWA) into law. LAWA, which allows Arizona to revoke the business licenses of employers that fail to verify the immigration status of each of their employees, was challenged in federal court by the Chamber of Commerce and immigrant rights groups. That unlikely team of plaintiffs argued that LAWA was preempted by federal immigration laws, and should therefore be blocked. Immigration is an area in which the federal government has long asserted close to exclusive jurisdiction, and rightly so; allowing states to create their own immigration laws or arbitrarily assume some of the roles assigned to federal officers would disrupt what traditionally has been a balanced and uniform approach to immigration.

When the Whiting case reached the Supreme Court, the conservative majority upheld LAWA, finding that it was not preempted by federal law since it pertained to licensing. The court relied on the “plain language” of the federal statutory provision on hiring undocumented immigrants, which expressly preempts state sanctions of employers except through “licensing or similar laws.”

Justice Breyer argued in his dissent that upholding the Arizona law would disrupt a careful balance between the penalties for hiring undocumented workers and the penalties for unlawful racial discrimination. In other words, Justice Breyer warned that this law would make racial discrimination a lesser evil than employing an undocumented immigrant in Arizona.

Whiting sent a powerful message to states like Arizona that wish to enforce their own harsh immigration laws. And there is no question that the laws are intended to be harsh. When debating Alabama’s parallel legislation, HR 56, legislators praised the bill by saying it “attacks every aspect of an illegal immigrant’s life” and hoping that the law would “make it difficult for them to live here so they will deport themselves.” South Carolina and Georgia have also passed their own versions of SB 1070, and numerous other states are considering similar legislation.

Yet in the year since Whiting came down, the lower courts have generally construed the decision narrowly. For example, the Fifth Circuit recently struck down a city ordinance that required all apartment renters in the city to prove their lawful immigration status in order to obtain an “occupancy license.” The court construed Whiting as applying only to business licenses and to the employment of undocumented workers.

Whiting has likewise posed little obstacle to the lower courts that have enjoined various provisions of SB 1070 and copycat legislation in Alabama, South Carolina, and Georgia, finding broad action on immigration by the states to be preempted by federal law or to constitute violations of the Fourth and Fourteenth Amendments.

  • In Alabama, a federal court recently struck down provisions of HR 56, holding that the state could not restrict housing options for undocumented immigrants. 
  • In South Carolina, a federal district court blocked state law provisions criminalizing the transportation of undocumented immigrants and the failure to carry registration papers, and a provision requiring local law enforcement to verify the immigration status of persons that can be reasonably suspected of being in the country illegally. 
  • In Alabama, a district court blocked a far-reaching provision that would allow for the state prosecution of immigration law violations, as well as blocking state restrictions on noncitizens looking for work and state penalties on employers that hire undocumented workers. 
  • In Georgia, a federal court blocked a state law provision requiring law enforcement officers to verify the immigration status of people they reasonably suspect to be undocumented upon stop, detention, or arrest.

Thus far, the trend among the lower courts suggests that these inhumane state laws will not withstand judicial scrutiny, but that could change when the Supreme Court issues its decision in Arizona v. United States.

Based on the tenor of oral arguments, the Court may be willing to uphold provisions of SB 1070 that many previously considered to be clearly preempted by federal law. Nevertheless, prevailing expert opinion suggests that the Supreme Court will strike down at least those provisions in SB 1070 that criminalize the failure to carry proper documentation and provide penalties for seeking employment as preempted by federal law. Any other result would be contrary to long-standing Supreme Court precedent and widespread consensus among the circuits on this issue. However, the Roberts Court has surprised legal experts before by bending over backwards to find preemption where there is none and vice versa; few would be surprised if the conservative majority did so again.

Leave a Reply

You must be logged in to post a comment.