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  by  Roy Beck

Perhaps the most amazing part of the suit by the U.S. Chamber of Commerce being considered by the Supreme Court is its claim that Arizona doesn't have the right to pull the business license of an employer that refuses to use E-Verify

Our amicus brief to the Supreme Court provides our own take on the fact that federal law specifically mentions license revocation as something states CAN do.  

With nearly all the money in the world to spend on lawyers, the Chamber very well may have a decent shot at persuading the Supreme Court the equivalent of proving that red is blue. 

But we will hope the Court rules more logically than that.  Our movement has much riding on the decision.

The ability of states to force businesses to hire legal workers by using E-Verify is key to the gains our movement hopes to achieve in 2011.  More states adopting madatory E-Verify laws can result in hundreds of thousands of unemployed American getting back to work this year (and probably millions over the next few years) by opening up jobs that otherwise would be filled by illegal aliens.

Below, find this particular argument (about ability to pull business licenses) from our amicus to the Supreme Court.  My comments will be interjected in this format.

The language of the text is necessarily complex because it is written in legal style for the Supreme Court. Most of the statements in the argument come from previous court rulings that would seem to support our argument. I've tried to highlight in red passages that can give you a quick indication of the thrust of the argument.

-- Roy Beck, Founder & CEO of NumbersUSA

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ARIZONA’S LAW IS NOT EXPRESSLY PREEMPTED BECAUSE IT IS A “LICENSING OR SIMILAR LAW” WHICH HARMONIZES WITH CONGRESSIONAL INTENT

This is a section of the NumbersUSA amicus curiae to the Supreme Court in the case of the U.S. Chamber of Commerce against the state of Arizona. Our Counsel of Record was J. E. McNeil.

The Chamber got its case to the Supreme Court by arguing that states are expressly preempted from taking away the business licenses from employers that fail to use E-Verify to screen out illegal alien workers.  The federal Court of Appeals rejected the Chamber's argument.  But after the U.S. Justice Department joined the Chamber, the Supreme Court agreed to take another look.

Express pre-emption occurs when Congress expressly declares a law's pre-emptive effect. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). In such cases, “our task is to identify the domain expressly pre-empted.” Id. In doing so, the courts focus in the first instance “on the plain wording of the [federal statute’s pre-emption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002) (internal quotation marks omitted). The courts also consider the “structure and purpose of the statute as a whole ... as revealed not only in the text, but through [our] reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to [operate].” Medtronic, 518 U.S. at 486 (internal quotation marks and citation omitted).

Until 1986, federal law did not prohibit the hiring of unauthorized aliens. De Canas, 424 U.S. at 360-61 (discussing the “Texas Proviso” which said that hiring unauthorized aliens was not “harboring” under 8 U.S.C. § 1324). In the Immigration Reform and Control Act of 1986, (“IRCA”), Pub.L. No. 99-603 (1986), Congress made two changes in federal law to prohibit the hiring:

First, Congress deleted the “Texas Proviso” in 8 U.S.C. § 1324, thus criminalizing employment of unauthorized aliens as “harboring.” Penalties under § 1324, as increased in 1996, include private treble damages and attorneys’ fees, state-level liability exposure, seizure of property, and even the death penalty for causing the death of any person, including an unauthorized alien, while harboring. 8 U.S.C. § 1324(a), (b).

There is no preemption clause under § 1324. Nor is there any indication that Congress intended to preempt private or state-level enforcement of this prohibition on hiring unauthorized aliens: in 1996, Congress expressly sought private and state-level enforcement of harboring penalties against employers of unauthorized aliens. “Immigration Control and Financial Responsibility Act of 1996,” S. Rep. 104-249 (1996), at 12.

Petitioners do not discuss the change to  § 1324, but it is a significant enforcement mechanism used today against employers of unauthorized aliens. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th Cir. 2010) (“We tend to agree with the Second Circuit that the revision history of § 1324(a)(1)(A)(iii) strongly indicates that one who hires an alien knowing or recklessly disregarding his illegal status is guilty of concealing, harboring, or shielding from detection.”); U.S. v. Ye, 588 F.3d 411 (7th Cir. 2009) (same); Hernandez v. Balakian, 480 F.Supp.2d 1198 (E.D.Cal.  2007) (private suit against employer of unauthorized aliens). 

The expansions of § 1324 in 1986 and 1996 tend to undercut Petitioners’ argument that Congress intended to oust state power to prohibit the hiring of unauthorized aliens; rather they indicate that Congress was expanding the available mechanisms to effect its intent to stop the employment of unauthorized aliens.

Second, Congress crafted “employer sanctions,” a new package of prohibitions, enforcement mechanisms and penalties, also designed to prohibit the employment of unauthorized aliens. 8 U.S.C. § 1324a. The penalties under
§ 1324a for hiring unauthorized aliens are much less severe than those available under § 1324.

Section 1324a, however, includes an express preemption clause, with a “savings clause” for “licensing and similar laws”: “[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).

So, you see that Congress DID prohibit a state from imposing various penalties on businesses hiring illegal aliens . . . EXCEPT.   That is a mighty big "except" that follows the words "other than."  The one thing expressly allowed for states to do is to punish illegal-alien-hiring businesses through licensing laws, precisely the thing that Arizona's law does.

Reference to "petitioners" means the Chamber of Commerce.

Petitioners contend that Arizona’s law is expressly preempted under this provision because it provides civil and criminal sanctions on employers of unauthorized aliens. Petitioners’ Br., at 16. Petitioners deny that Arizona’s law is within the savings clause of “licensing and similar laws” because “Nothing about the Arizona Act remotely resembles a ‘licensing law.’” Id.

Wow!  Did I warn you that the Chamber of Commerce would argue that red is blue?  The punishment in Arizona's law is to take away the license to do business from employers that refuse to use E-Verify. Yet, the Chamber argues that "nothing about the Arizona Act remotely resembles a licensing law."

Congress did not define the terms “licensing and similar laws” in the savings clause. Terms that are not statutorily defined are usually ascribed their “ordinary or natural meaning.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 476 (1994). Arizona’s law denies business and similar licenses to those who employ unauthorized aliens. Ariz. Rev. Stat.
§ 23-212(F)(1). 

How can a mandate for the denial of a business or similar license not be a licensing law?

The District Court held that Arizona’s law was within the savings clause. Ariz. Contractors Ass’n v. Candelaria, 534 F.Supp. 2d 1036, 1046-47 (D.Ariz. 2008). The Ninth Circuit agreed. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 864-66 (9th Cir. 2009). Both lower courts noted that the plain language of the savings clause seems to cover Arizona’s law.

Both levels of lower federal courts found that a law that provides for taking away a license is indeed a licensing law.  Imagine that!  But once the power of the Presidency was thrown behind the Chamber of Commerce, the Supreme Court apparently felt it had to give the "red is blue" argument another chance.

Petitioners argue expansively that this interpretation is too broad: “If this is all that is required to satisfy the savings clause, the preemption provision is a nullity.” Petitioners’ Br., at 22. Indeed, Petitioners claim that if Arizona’s licensing law is not preempted, the “fundamental purpose” of the prohibition on hiring unauthorized aliens “is utterly without effect.” Petitioners’ Br., at 17.

Petitioners’ argument is that the loss of a business license is a “death penalty” for a business employing unauthorized aliens, and Congress could not have contemplated such a drastic sanction for employing unauthorized aliens. Petitioners’ Br., at 35. This is an odd contention, given that Congress has enacted an actual death penalty provision under § 1324 for some individuals who hire unauthorized aliens for gain. 8 U.S.C. § 1324(a)(1)(B); “Immigration Control and Financial Responsibility Act of 1996,” S. Rep. 104-249 (1996), at 27 (rejecting Simon amendment to delete death penalty provisions).

Essentially here, then, the petitioners argue that this is not a licensing law merely because there is a potential for an extreme result.  The converse then is that if Arizona had chosen a less drastic result—say suspending the business license for a month, there would be no problem. Yet, there is no indication in the text or legislative history of IRCA that Congress intended the savings clause in § 1324a to permit only state “licensing and similar laws” that cover nothing but minor offenses or impose minor penalties.  And there is no logic to such an argument.

Quoting one sentence in a House Judiciary Committee report, H.R. Rep. 99-682(I), at 58 (1986), Petitioners contend that the savings clause was intended only to permit state “licensing and similar laws” which “tack on” additional penalties for those who have already been found to have violated 8 U.S.C. § 1324a’s prohibition on hiring. Petitioners’ Br., at 17-18. The Ninth Circuit noted that Petitioners’ position doesn’t take into account the rest of the paragraph Petitioners rely on. Chicanos Por La Causa, Inc., 558 F.3d at 865-66.

Yet the relevant portions of that House report were even broader than the courts below cited. The paragraphs immediately before and after the sentence Petitioners quoted also permit other types of state “licensing and similar laws,” such as those that do not impose “civil fines and/or criminal sanctions,” and state labor protection laws. H.R. Rep. 99-682(I) at 58.

These additional portions of the House report add vital context to the statutory text of the savings clause. They explain, for example, how the savings clause might interact with the private enforcement provisions of § 1324. They also explain that the savings clause was intended to permit states vigorous enforcement of labor law protections, a traditional area of state regulation recognized by this Court in De Canas. 424 U.S. at 356-57.

Overall, especially looking in context at § 1324 as well as § 1324a, Congress does not seem to have intended a narrow or limited construction for the savings clause. A broad sweep, contrary to Petitioners’ argument, would seem more in keeping with Congress’s intention in 1986 and 1996 to create expansive measures to stop the hiring of unauthorized aliens.

Petitioners’ legitimate concern that the savings clause not swallow the preemption provision is addressed by the usual preemption review requirement that state laws affecting unauthorized aliens must “mirror federal objectives and further[] a legitimate state goal.” Plyler, 457 U.S. at 225; De Canas, 424 U.S. at 356-57.   The word “and” is critical in applying this standard.  The state need not be an exact mirror of the federal law.  The state law must mirror the federal objectives (stopping employment of unauthorized aliens) AND should further a legitimate state goal (protecting the economy of the state).

When statutory language is plain and unambiguous, “the sole function of the courts ... is to enforce it according to its terms.” Lamie v. United States Tr., 540 U.S. 526, 534 (2004) (internal quotation marks omitted). That is what the courts below, and other courts  which have looked at the language and history of the savings clause, have done. The Arizona law is within the savings clause, and is thus not expressly preempted.

All of the above can be very helpful arguments for those of you in states where the legislature will be considering a similar E-Verify law.   Your NumbersUSA staff will be watching those states carefully and alerting you to how you can help pass the legislation.
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Updated: Mon, Jul 24th 2017 @ 2:44pm EDT

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