Thursday, the United States Supreme Court issued its opinion in Chamber of Commerce v. Whiting. The Court held that an Arizona law that provides that the state can suspend or revoke the license of any employer who “knowingly or intentionally” employs an unauthorized alien is constitutional. The Court also upheld that portion of the Arizona law that required all employers to use E-Verify in their employment process.
The only question here was whether federal immigration law “preempted” the state from passing it’s own law dealing with the subject.
Preemption basically means that because the federal government has passed a law dealing with a particular subject, the states are prohibited from enacting any laws on that subject. There are two types of preemption, one expressed, and one implied.
Expressed preemption means that Congress specifically said, “only” the federal government can deal with this specific issue. Implied preemption means that states cannot enact a law that would interfere with the law Congress enacted.
The decision was 5-3, with Justice Kagan recusing herself because she had worked on the “friend of the court” brief filed by the United States when she was Solicitor General. This may come as a shock to some, but the government’s “friend of the court” brief urged the Court to declare the Arizona law unconstitutional.
Justice Roberts wrote the majority opinion, and Justice Breyer (joined by Justice Ginsburg) and Justice Sotomayor wrote dissenting opinions. I mention this because of a footnote in the majority opinion which I found to be telling. More on that later.
In any event, the Court found that nothing in the federal law directly prohibited Arizona from passing its law. And, no “implied” preemption existed because the Arizona law did not “directly interfere” with the federal program. You can find the Court’s holding at page 30.
On to the footnote.
Justices Breyer and Ginsburg found the Arizona law to be unconstitutional for “reason A”, whereas, Justice Sotomayor found the law unconstitutional for “reason B”. The rationales employed were quite different.
Here is what Justice Roberts said about that, at the bottom of page 19,
It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text. [emphasis supplied]
You are correct, Mr. Justice.
That is what “social justice” brings us. Social justice arrives at the conclusion, and then works its way back to the law.
True constitutional law starts with the law, and then works its way to the conclusion.