I. Introduction

“Illegal immigration” is a phrase that elicits strong opinions from many people.¹ Debate on the topic includes the blatantly racist,² sympathy for the plight of immigrants,³ and less emotionally based arguments that fall in between. It is estimated that there are over ten million undocumented aliens in the United States.⁴ Most people do not contest that something must be done about illegal immigration; the question becomes what.⁵ In an attempt to stem the tide of illegal immigration, some states have begun to enact their own immigration laws.⁶ Many state laws purport to regulate things like housing or employment, but in effect act as immigration regulations.⁷ Arizona passed laws of this sort, one of which targets employment of unauthorized aliens, thus targeting a primary incentive for immigration.⁸ This law was recently the subject of litigation in the United States Supreme Court.⁹

This note attempts to show that the Supreme Court, in Chamber of Commerce v. Whiting,¹⁰ should have found that federal law pre-empts the Arizona law, and that there will be serious implications resulting from the Court’s contrary holding.¹¹ Section II of this note provides an overview of Whiting and the relevant state and federal statutes considered therein, the Court’s reasoning, and the holdings it reached. Section III discusses principles of the pre-emption doctrine relevant to Whiting. This discussion begins with an overview of the federal power to legislate in the area of immigration, and an introduction to the germane principles of pre-emption. The discussion then lays out pre-emption doctrine case law including application early on, more recently, in the specific area of immigration law, and in the very specific area of employment authorization. Finally, Section IV discusses practical concerns resulting from Whiting.

II. Overview of Chamber of Commerce v. Whiting

In Whiting, the United States Supreme Court analyzed potential pre-emption of Arizona law by two federal statutes, the Immigration Reform and Control Act (IRCA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).¹² This section summarizes the relevant state and federal laws, the Court’s holdings on the pre-emption issue, and its basic reasoning leading it to those holdings.

IRCA requires all employers to verify employment authorization of all new hires, outlines the required verification procedure, and imposes sanctions for knowingly hiring an unauthorized alien.¹³ IRCA also contains a pre-emption provision, which states that, “The 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.”¹⁴ The language allowing state licensing laws constitutes a saving clause that saves a small class of state law from pre-emption.¹⁵

IIRIRA authorized the creation of E-Verify as an “experimental complement[] to the I-9 process” of document review.¹⁶ E-verify is an electronic system for employers to verify employment authorization of workers.¹⁷ IIRIRA announces that use of E-Verify is voluntary and prohibits the Secretary of Homeland Security from mandating its use for anyone outside of the federal government.¹⁸ Use of E-Verify for employment authorization verification, however, creates a rebuttable presumption of compliance with IRCA.¹⁹

Arizona law requires that all employers use E-Verify.²⁰ The attorney general or county attorney is required to request information from the federal government regarding the immigration status of a worker upon complaint, by any person, that a worker is unauthorized.²¹ Upon a determination that an employer has knowingly hired an unauthorized alien, the law imposes various sanctions ranging from mandatory termination of the employee, mandatory filing of quarterly reports for all new hires, and a ten-day suspension of the employer’s business license for a first time offense, to permanent revocation of all business licenses for a second offense.²²

Several business groups and civil rights organizations, led by the Chamber of Commerce (“Chamber”), challenged the Arizona law on several grounds.²³ First, Chamber argued that the Arizona law is explicitly pre-empted because it is not a legitimate licensing law; it does not serve to grant licenses, but only to suspend or revoke them.²⁴ The Court rejected this argument as having “no basis in law, fact, or logic.”²⁵ The Court also refused to consider Chamber’s argument that the saving clause should be read narrowly in light of the history of its enactment, stating that the plain text of IRCA does not compel the suggested reading.²⁶

Chamber next argued that the Arizona licensing law is impliedly pre-empted on field pre-emption grounds.²⁷ In other words, state law is ousted from the field of law because federal legislation comprehensively occupies it.²⁸ The Court rejected Chamber’s argument, asserting that because the Arizona law falls within the saving clause, it cannot offend any congressional intention to oust state law.²⁹

Chamber also argued that the Arizona law is pre-empted because it upsets the balance struck by Congress among competing goals of “deterring unauthorized alien employment, avoiding burdens on employers, protecting employee privacy, and guarding against employment discrimination.”³⁰ The Court asserted that licensing is not a traditionally federal area of regulation, and denied that state law would impede federal programs.³¹ The Court also downplayed the pressure placed on employers, and the corresponding potential for discrimination.³² Finally, the Court stated that, “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives,’” because “‘it is Congress rather than the courts that preempts state law.’”³³

Finally, the Court rejected Chamber’s argument that IIRIRA impliedly pre-empts the Arizona law’s E- Verify mandate.³⁴ The Court concluded that federal law “limits what the Secretary of Homeland Security may do--nothing more.”³⁵ Sidestepping congressional intent, the Court instead pointed to President George W. Bush’s expression of support for the Arizona law.³⁶ The Court did reference Congress’s objectives in developing E-Verify, but failed to address its specific objectives for making use voluntary.³⁷ Thus focusing on the broader objectives of E-Verify, the Court found state law did not undermine legislative purposes.³⁸

In rejecting Chamber’s argument that state E-Verify mandates would result in an unsustainable drain on federal resources, the Court relied on a statement by the Department of Homeland Security (DHS).³⁹ DHS expressed confidence that the E-Verify system could handle use resulting from Arizona’s mandate in addition to similar existing mandates, but did not address the specific issue of federal resources or the consequences of additional state mandates.⁴⁰ In sum, the Court rejected all express and implied pre-emption arguments by Chamber, without undertaking a sincere analysis of implied pre-emption.⁴¹

III. Pre-emption Doctrine and Implied Pre-emption: Its History, Current Contours, and How It Applies to Immigration Law

This section provides an overview of the pre-emption doctrine, specifically principles of implied pre- emption. First is a discussion of the federal power to regulate immigration, followed by an overview of
general pre-emption principles. Next follows a glance at implied pre-emption over time, including application early on, more recently, in the specific area of immigration law, and in the even more specific area of employment of aliens. Finally, the last part of this section attempts to show that implied pre-emption principles dictate pre-emption of Arizona law.

A. Basis for Federal Power to Legislate in the Area of Immigration Law

Under the Supremacy Clause of the Constitution, federal law pre-empts conflicting state law so long as it is made in pursuance of the Constitution.⁴² The Supreme Court has long recognized that Congress holds plenary power to regulate immigration.⁴³ Although the Supreme Court has found different bases for the federal exercise of this power over time, the Court has most recently attributed this power to the Naturalization Clause of the Constitution.⁴⁴ That clause states that Congress has the power to “establish a uniform Rule of Naturalization.”⁴⁵

As early as 1875, the Supreme Court has recognized Congress’ power to legislate in the area of immigration, initially citing the Commerce Clause as the basis of such power.⁴⁶ In several other cases, the Court has stated the power is grounded in authority inherent in independence and sovereignty.⁴⁷ It has also specifically linked the power to inherent foreign affairs powers.⁴⁸

Most recently, in INS v. Chadha,⁴⁹ the Court stated that federal power to regulate immigration is grounded in the Naturalization Clause.⁵⁰ In that case, noncitizen Chadha overstayed his visa and was
subsequently subject to removal proceedings.⁵¹ Because he never sought naturalization, the Supreme Court arguably extended the Naturalization Clause beyond its plain text to matters of immigration law in general.⁵² Regardless of the foundation attributed to federal power over immigration law, the Court has consistently recognized that Congress possesses such power.⁵³

B. General Principles of Pre-emption

Federal legislation may pre-empt state legislation either expressly or impliedly.⁵⁴ Implied pre-emption is further divided into two categories, field pre-emption and implied conflict pre-emption.⁵⁵ These pre-emption principles apply to conflicts between state and federal law in all areas where federal power is exercised legitimately, which includes immigration law.⁵⁶

Express pre-emption occurs where Congress chooses to “pre-empt state law by so stating in express
terms.”⁵⁷ All other forms of pre-emption fall under the label of implied pre-emption.⁵⁸ Field pre-emption occurs when congressional intent to pre-empt all state law in a particular area is “inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.”⁵⁹

Implied conflict pre-emption can occur in two different ways.⁶⁰ First, it can occur “when ‘compliance with both federal and state regulations is a physical impossibility.’”⁶¹ Secondly, implied conflict pre-emption can occur “when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”⁶²

Any argument that the Arizona law is expressly pre-empted would likely result in a battle of different definitions of the word “license.”⁶³ Thus, because the strongest argument that the Arizona law is pre-empted by IRCA and IIRIRA is grounded in implied pre-emption, the following discussion will focus on this type of pre-emption.⁶⁴

C. Implied Pre-emption Cases in General

The Supreme Court has developed and applied the pre-emption doctrine for over 150 years.⁶⁵ Accordingly, a wealth of case law exists regarding the doctrine, within which implied conflict pre-emption plays a major role, despite the Whiting Court’s quick dismissal of any serious inquiry of this type.⁶⁶ This section will discuss relevant case law, in an effort to demonstrate that the Court has frequently been willing to employ a much more rigorous inquiry into implied pre-emption than the Whiting Court.

1. Early Use of Implied Pre-emption

The Supreme Court has long recognized implied pre-emption, developing and applying implied pre- emption principles over many years.⁶⁷ One early case, Houston v. Moore, clearly establishes pre-emption as a mechanism by which federal law trumps state law.⁶⁸ Houston dealt with a Pennsylvania law that imposed penalties for not reporting when called for active military duty, and laid out a procedure for state adjudication.⁶⁹ The state enacted this statutory scheme despite concurrent penalties and procedures prescribed by federal law.⁷⁰ The Court found that the power to govern the militia, once it has been called forth, is an exclusively federal power.⁷¹ Moreover, the Court noted that in areas where federal and state governments both have power to legislate, once Congress has spoken, state law must give way.⁷² Finally, the Court recognized that even if state legislation is not ousted from the area of law, if it is “practically inconsistent” with federal law, it “must yield to the supremacy of the laws of the United States.”⁷³

2. Persisting Use of Implied Pre-emption in More Recent Years

The Supreme Court has continued to rely on implied pre-emption, affirming that its validity has not faded over time.⁷⁴ As recently as 1996, in Medtronic, Inc. v. Lohr,⁷⁵ the Court expressed strong support for implied pre-emption principles and analysis of legislative purpose.⁷⁶ In utilizing such an approach, the Court explained that its “analysis of the scope of the statute’s pre-emption is guided by
our oft-repeated comment . . . that ‘[t]he purpose of Congress is the ultimate touchstone in every pre- emption case.’”⁷⁷ Elaborating further, the Court explained that, “any understanding of the scope of a pre-emption statute must rest primarily on ‘a fair understanding of congressional purpose.’”⁷⁸

Even more recently, in 2000, in Geier v. American Honda Motor Co.,⁷⁹ the Court discussed pre-emption principles as they applied to federal law with many relevant similarities to the federal laws considered in Whiting, IRCA and IIRIRA.⁸⁰ First, the federal law in Geier resembled IRCA in that it also had a pre-emption provision.⁸¹ Moreover, the law also had a “saving clause” within which the state law fell.⁸²

After finding that the state law fell within the saving clause of the federal law, the Geier Court continued its analysis to determine whether the state law conflicted with the federal law in a way that
would implicate implied pre-emption.⁸³ Thus, the Court concluded that, “the saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles.”⁸⁴
Similarly, later in the opinion, the Court again stressed that neither the existence of the pre-emption provision nor the saving clause “create[d] some kind of ‘special burden’ beyond that inherent in ordinary pre-emption principles--which ‘special burden’ would specially disfavor pre-emption here.”⁸⁵

Throughout its analysis, the Geier Court expressed strong support for pre-emption of state law where it conflicts with the operation or objectives of federal law, despite the existence of a saving clause.⁸⁶ In one such statement of support, the Court declared that it “has repeatedly ‘decline[d] to give broad effect to saving clauses,’” if doing so would upset the balance struck by federal law.⁸⁷ Later, the Court queried why Congress would have expected bypass of ordinary pre-emption principles despite actual conflict between federal objectives and state law.⁸⁸ The Court concluded that Congress would not have intended that result.⁸⁹

The Court asserted that there is not a legal, but merely a terminological, difference “between ‘conflicts’ that prevent or frustrate the accomplishment of a federal objective and ‘conflicts’ that make it ‘impossible’ for private parties to comply with both state and federal law.”⁹⁰ Thus, the Court concluded that state laws creating either situation are invalid.⁹¹ The Geier Court asserted that this approach has been the practice of the Court and that it “has thus refused to read general ‘saving’ provisions to tolerate actual conflict both in cases involving impossibility purpose’ cases.”⁹²

The Geier dissent attacked the majority with the same language used by the Whiting majority, claiming that analysis of “frustration-of-purpose” pre-emption involves an unacceptable “freewheeling judicial inquiry.”⁹³ Both the Geier dissent and the Whiting majority based their unwillingness to undertake such an inquiry on the idea that “‘it is Congress rather than the courts that preempts state law.’”⁹⁴ The Geier majority responded to the dissent’s attack by commenting that pre-emption principles are difficult enough to apply without further complicating them by drawing new distinctions, as the dissent would have done.⁹⁵ Specifically, it voiced concern that such an approach would create “legal uncertainty” and associated issues.⁹⁶

The federal law in Geier, as it applied to airbag installation, is also useful for considering IIRIRA, the other federal law at issue in Whiting.⁹⁷ In Geier, federal law required auto manufacturers to equip their
cars with “passive restraints,” which included airbags.⁹⁸ The law did not specifically mandate airbags for several reasons, including safety concerns.⁹⁹ It also did not prohibit installation of airbags on all cars, but left the choice to the manufacturer.¹⁰⁰ The federal law also sought to gradually phase-in passive restraints, largely to allow for technological development and increased safety of airbags.¹⁰¹ The Court held that state negligence law, which created liability for failure to install airbags, was pre-empted by federal law.¹⁰² It rested its conclusion on implied conflict pre-emption, asserting that state law upset the balance struck by federal law.¹⁰³

IIRIRA is similar to the federal law in Geier in that it does not mandate an employer’s use of E- Verify.¹⁰⁴ Also, similar to extra credit given by the federal law in Geier for installation of airbags, IIRIRA provides employers who use E-Verify with a rebuttable presumption of compliance with IRCA.¹⁰⁵ Like the federal law in Geier, which mandated installation of safety devices, but left open the choice of installing seatbelts or going a step further by installing airbags,¹⁰⁶ federal immigration law mandates employment verification but leaves open the decision of whether to use E-Verify in addition to I-9s (document inspection).¹⁰⁷ Furthermore, the state law in each case sought to mandate use of something, voluntary under federal law, which required further development to ensure its proper functioning.¹⁰⁸ Finally, similar to the phasing-in of passive restraints in Geier, E-Verify is a pilot program.¹⁰⁹

Although the federal law in Geier contained an express pre-emption provision (and related saving clause) and IIRIRA does not, the Geier Court found that these portions of the law did not answer the pre-emption question and, thus, employed ordinary pre-emption principles.¹¹⁰ Hence, there should have been no discrepancy between the principles used to assess potential pre-emption in each case.¹¹¹ Application of the implied pre-emption principles employed in Geier dictates that Arizona law is pre-empted.

D. Implied Conflict Pre-emption Cases in the Specific Area of Immigration Law

The Supreme Court has made no exception for the application of pre-emption principles in the specific
area of immigration law.¹¹² In Hines v. Davidowitz,¹¹³ a Pennsylvania law imposed on immigrants certain registration requirements and corresponding sanctions for violations that did not parallel co-existing federal law.¹¹⁴ In undertaking an implied pre-emption analysis, the Court explained that, “states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.”¹¹⁵ Additionally, the Court explained that its task involved determining whether state law stood as an obstacle to the purposes and objectives of federal law.¹¹⁶

Rather than limit its application of implied pre- emption principles due to the subject matter, the Court emphasized the exigency of such an analysis in the area of immigration law.¹¹⁷ Specifically, the Court asserted that, in making a determination, “it is of importance that this legislation is in a field which affects international relations, the one aspect of our government that from the first has beemost generally conceded imperatively to demand broad national authority.”¹¹⁸ Thus, ordinary pre-emption principles are fully applicable to immigration law.

E. Pre-emption of State Laws Regulating Employment of Noncitizens -- From DeCanas v. Bica¹¹⁹ to Chamber of Commerce v. Whiting

Analysis of Whiting is not complete without mentioning DeCanas, because it is the Supreme Court case most analogous to Whiting in that it also dealt with the specific issue of pre-emption in the context of state law regarding employment of noncitizens.¹²⁰ This section gives a brief overview of DeCanas, and explains the differences between DeCanas and Whiting.

1. DeCanas v. Bica and INA: A Brief Explanation

The relevant federal law in DeCanas was the Immigration and Nationality Act (INA).¹²¹ IRCA was passed ten years after DeCanas, thus replacing INA as the relevant federal statute in Whiting.¹²² IRCA developed a comprehensive legislative scheme for employment authorization verification.¹²³ INA, by contrast, did not explicitly deal with employment of noncitizens.¹²⁴ Thus, the DeCanas Court found that California law was not impliedly pre-empted by INA under field pre-emption.¹²⁵ The Court gave three reasons for its holding: first, states have traditionally held broad police powers to regulate employment in order to protect workers;¹²⁶ second, an exercise of this police power “must give way to paramount federal legislation¹²⁷ and finally, no paramount federal legislation existed, because Congress had shown no more than a “peripheral concern with employment of illegal entrants.”¹²⁸

Next, the Court considered whether the state law was pre-empted on implied conflict pre-emption grounds.¹²⁹ The Court, however, found that the record provided to it by the lower court was too incomplete to determine whether or not the California law created an obstacle to federal objectives.¹³⁰ Thus, the Court concluded that the state law was not pre-empted, based solely on its field pre-emption analysis.¹³¹

2. Differences between Whiting and DeCanas

DeCanas, though it similarly dealt with pre-emption of state law regarding employment of noncitizens, is not controlling because of the subsequent enactment of IRCA.¹³² Also, DeCanas differed from Whiting in that the INA contained no pre-emption provision or saving clause.¹³³ Finally, the DeCanas Court did not undertake an implied conflict pre-emption analysis because the record was insufficient.¹³⁴ Significantly, however, the DeCanas Court acknowledged implied category of pre-emption.¹³⁵

F. What Was Congress’s Intent for IRCA and IIRIRA?

The text of IRCA and IIRIRA necessitate pre- emption of Arizona law. IRCA establishes a detailed scheme regarding admissions of immigrants and nonimmigrants, and employment eligibility for each category of noncitizen.¹³⁶ It also sets out a detailed scheme for enforcing its employment authorization requirements.¹³⁷ Immigration and Customs Enforcement (ICE) is authorized to bring charges against employers who violate the requirements of federal law.¹³⁸ IRCA leaves to the states only the power to impose licensing sanctions.¹³⁹ Because ICE is given the power to bring charges for violations, the text allows states to impose licensing sanctions only in response to final determinations resulting initially brought by ICE.¹⁴⁰

Mandating use of E-Verify directly conflicts with the text of IIRIRA. IIRIRA makes use of E-Verify voluntary, as explicitly noted by several headings and subheadings of the relevant provisions.¹⁴¹ IIRIRA also instructs the Secretary of Homeland Security to “widely publicize” the fact that participation is voluntary, and prohibits the Secretary from mandating its use for anyone outside of the federal government.¹⁴²

Aside from the textual difficulties with finding the Arizona law not pre-empted, the state law also creates an obstacle to federal legislative purposes. Courts have discerned four primary purposes intended by Congress for IRCA:¹⁴³ first, stemming illegal immigration;¹⁴⁴ second, minimizing burdens on employers;¹⁴⁵ third, preserving legal immigration by minimizing illegal immigration;¹⁴⁶ lastly, creating misdemeanor criminal liability for employment of unauthorized workers.¹⁴⁷

Janet Napolitano, the Governor of Arizona who signed into law the state law at issue in Whiting, stated that she did so because she viewed Congress incapable of providing what she believed was needed immigration reform, and because she hoped to reduce “the flow of illegal immigration into Arizona,” by reducing or eliminating the availability of employment.¹⁴⁸ Thus, the Arizona law was intended to further only the first IRCA goal--stemming illegal immigration--without providing protection for the other goals, because it was meant to supplant dissatisfactory federal legislation and enforcement.¹⁴⁹ Therefore, the Arizona law has the effect of altering the “delicate balance of statutory objectives” struck by IRCA.¹⁵⁰

The Arizona law also undermines congressional intent regarding E-Verify--by mandating that which Congress explicitly made voluntary, there are few clearer ways to undermine Congress’ objectives.¹⁵¹ The Court relied on an Executive Order by President George W. Bush mandating use of E-Verify for federal contractors, and his contemporaneous statement of belief in the validity of Arizona’s law, as evidence that the Arizona law did not undermine congressional intent.¹⁵² The Court also relied on DHS’s opinion that E-Verify could sustain existing state E-Verify mandates.¹⁵³

Despite the weak probative value of considering the statutory interpretation of anyone other than Congress to show congressional intent, the strong negative reaction and legal challenges to the Executive Order and the fact that the President’s statement of support for the Arizona law was made in the context of these challenges, tends to negate any such value.¹⁵⁴ Additionally, the Court’s reference to Congress’s purposes for creating E-Verify does not shed much light on its decision to make it voluntary.¹⁵⁵ Finally, the Court’s reliance on DHS was misplaced because DHS is not a competent source for questions regarding the federal budget.¹⁵⁶

IV. After Whiting

Whiting is unlikely to be an isolated case with limited impact.¹⁵⁷ Since Whiting, other similar litigation has begun, and litigation that was already underway will undeniably be impacted by the decision.¹⁵⁸ This is especially true because the Supreme Court recently reaffirmed Whiting’s approach to analyzing state immigration laws.¹⁵⁹ Also, Whiting creates several practical concerns about other state laws have been proposed or enacted.¹⁶⁰

A. Other Cases Involving State Immigration Laws

1. United States v. Arizona¹⁶¹

Arizona has enacted other state immigration laws in addition to the one considered in Whiting, most notably the Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”).¹⁶² S.B. 1070 creates state offenses for immigration law violations.¹⁶³ The United States challenged the state law on pre-emption grounds in United States District Court, and the District of Arizona granted a preliminary injunction to enjoin enforcement of several provisions of S.B. 1070.¹⁶⁴ Both parties appealed and the Circuit Court affirmed.¹⁶⁵ This affirmation occurred, however, about a month before Whiting was decided, and it is unclear what effect the Supreme Court’s decision in Whiting will have on the case when it is decided on the merits.

2. Lozano v. Hazleton¹⁶⁶

The City of Hazleton, Pennsylvania, enacted local ordinances criminalizing employment and housing of undocumented aliens, and imposing various sanctions upon employers, landlords, and others, who violate the ordinances.¹⁶⁷ The district court found the local ordinances pre-empted by federal law, and issued a permanent injunction against their enforcement.¹⁶⁸ On appeal, the Third Circuit affirmed in large part.¹⁶⁹ After Whiting, the Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration based on Whiting.¹⁷⁰ It is possible that the outcome of this case Whiting.¹⁷¹

B. Other Recently Passed or Proposed State Laws

The implications of Whiting are not confined to litigation of state immigration laws that is already underway; other states are continuing to enact such laws and litigation is increasing.¹⁷² For example, the Department of Justice recently filed a complaint challenging a recently passed Alabama law, which targets employment of unauthorized workers, as well as transportation, housing, and schooling of undocumented aliens, among other things.¹⁷³ Also, several other states have proposed or enacted immigration legislation, including Georgia, Mississippi, Nebraska, Oklahoma, Pennsylvania, South Carolina, and Tennessee.¹⁷⁴

C. Problems with State Enforcement of Immigration Law

1. Unqualified Officials

Immigration law is a complicated body of law that has profound significance for those whose lives it touches.¹⁷⁵ In order to properly enforce immigration law, state and local police require extensive training, which also requires funding.¹⁷⁶ As it is, the method of adjudication designated by Congress provides that judges familiar with immigration law will hear charges of IRCA violations.¹⁷⁷ State courts, in contrast, are generally inexperienced with issues of federal law like immigration law.¹⁷⁸ Thus, state laws like the Arizona law in Whiting would place some of the most important issues of noncitizens’ lives in the hands of those unknowledgeable about such issues.

2. Negative Effects for State and Local Police

Several recently passed or proposed state laws, including other Arizona legislation not at issue in Whiting, require noncitizens to carry immigration documentation with them at all times, and give state
and local police broad power to arrest and detain individuals they suspect of being in the country illegally.¹⁷⁹ Such laws have created concern, voiced by police and others, that public safety will be undermined.¹⁸⁰ This may result from noncitizens’ reluctance to cooperate in police investigations or to report crimes, and from diverting resources away from public safety initiatives.¹⁸¹

3. E-Verify’s Limitations

Recent state laws that mandate use of E-Verify, like the Arizona law in Whiting, raise other concerns.
The program’s reliability is highly contested.¹⁸² Also, mandatory use of E-Verify creates serious burdens for employers and employees; for example, employers must maintain access to computers and the Internet, and employees shoulder the burden of challenging tentative non-confirmations.¹⁸³ Also, E-Verify’s exclusive use of social security numbers for employment authorization verification could easily result in an increase in identity fraud.¹⁸⁴

V. Conclusion

Chamber of Commerce v. Whiting was a departure from the Supreme Court’s traditional application of
implied pre-emption and general pre-emption principles, which have been well established and repeatedly applied over many years.¹⁸⁵ The Court used implied pre-emption principles only a few years ago to strike down a state law with a similar relationship to federal law as the laws in Whiting.¹⁸⁶ The Whiting Court should have found Arizona law pre-empted by federal law because it undermines several federal objectives.¹⁸⁷ Moreover, Whiting has the potential to create serious practical problems, and has already begun to do so as more and more state immigration laws are passed or proposed.¹⁸⁸ It is time to return an exclusively federal power to the federal government and tear down the façade of state laws purporting to regulate employment, housing, or other things but really meant to regulate immigration. Dissatisfaction with federal law must be dealt with at the federal
level.

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^{1 Cf. Southern Poverty Law Center (SPLC), Anti- Immigration Groups, Intelligence Report 101 (Spring 2011), http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2001/spring/blood-on-the-border/anti-immigration-# (listing and briefly describing several anti-immigration groups).}

^{2 See SPLC, supra note 1 (describing anti-immigration groups); see also SPLC, The Year in Hate, 2000, Intelligence Report 101 (Spring 2001), http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2001/spring/the-year-in-hate (describing existence of racist and ethnic hate including ethnic nationalism).}

^{3 See Political Research Associates, National Pro- Immigrant Groups, http://www.publiceye.org/research/directories/immig_grp_defend.html (last visited Oct. 10, 2011) (listing various pro-immigrant groups).}

^{4 Michael Hoefer, Nancy Rytina & Bryan C. Baker, Office of Immigration Statistics, Dept. of Homeland Security, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010, 1 (2011). It is difficult to know how many undocumented aliens are residing in the United States, thus estimates are made by subtracting the number of documented aliens from the number of foreign-born residents based on information collected by the Census Bureau. Id. For years between census collections, estimates are made by extrapolation based on recent immigration patterns. Id. Thus, those undocumented aliens who do not complete a Census form are not included in the estimate.}

^{5 Cf. Dream Act Portal, http://dreamact.info/ (discussing one proposed reform to immigration law). The Dream Act would have given legal immigration status to children who were brought into the country by their parents and theoretically incapable of making the choice for themselves, so long as they complete certain required education or serve in the military. Id. The Act, however, did not make it past the Senate, to the frustration of many. See Elise Foley, DREAM Act Vote Fails in Senate, Huffington Post (Dec. 18, 2010, 11:31 AM), http://www.huffingtonpost.com/2010/12/18/dream-act-
vote-senate_n_798631.html (discussing Dream Act’s failure in Senate).}

^{6 Cf. Nat’l Immigration Forum, Deficits, Lawsuits, Diminished Public Safety: Your State Can’t Afford S.B. 1070, December 30, 2010, available at http://www.immigrationforum.org/images/uploads/2010/SB 1070Report.pdf laws).}

^{7 See, e.g., U.S. Dep’t of Justice, Department of Justice Challenges Alabama Immigration Law (2011), http://www.justice.gov/opa/pr/2011/August/11-ag- 993.html (noting Alabama is “designed to affect virtually every aspect of an unauthorized immigrant’s daily life”). The Alabama law regulates things like housing, transportation, right to contract, schooling, and other things. Id. Alabama and other states are regulating these areas with the specific aim of targeting undocumented aliens. Id.}

^{8 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1975-76 (2011) (discussing Arizona law).}

^{9 Id.}

^{10 131 S.Ct. 1968 (2011).}

^{11 Cf. George Blum et al., Tests Applied to Determine Preemption, 16A American Jurisprudence § 234 (2d ed. 2011) (discussing pre-emption principles). Implied pre-emption principles, applied traditionally, dictate provide strong support for invalidation of Arizona law.}

^{12 See Whiting, 131 S.Ct. at 1974-75 (discussing and outlining relevant portions of IRCA and IIRIRA).}

^{13 See 8 U.S.C. § 1324a(a), (b), (e)-(f) (2006) (explaining required procedure for employment authorization verification and sanctions for non-compliance). Specifically, the employer is required to review documents of employment applicants that establish their work authorization and identification. § 1324a(b). It is a crime to “hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” § 1324a(a)(1)(A). Civil sanctions for knowingly hiring, recruiting, or referring unauthorized aliens for employment range from a minimum $250 fine for a first offense to a maximum $10,000 fine in the case of multiple previous violations. § 1324a(e)(4)(A). Criminal sanctions include a maximum $3,000 fine and six months imprisonment for a pattern of violations. § 1324a(f)(1).}

^{14 § 1324a(h)(2).}

^{15 See Whiting, 131 S.Ct. at 1977-78 (discussing saving clause and Arizona law).}

^{16 See Id. at 1975 (discussing E-Verify and other programs created by IIRIRA).}

^{17 See Naomi Barrowclough, Note, E-Verify: Long-Awaited “Magic Bullet” or Weak Attempt to Substitute Technology for Comprehensive Reform?, 62 Rutgers L. Rev. 791, 793 (2010) (explaining E-Verify).}

^{18 See Whiting, 131 S.Ct. at 1975 (explaining limitation on Secretary’s authority to require use of E-Verify). The Secretary of Homeland Security is only permitted to require use of E-Verify by individuals or entities within the Federal Government. Id.}

^{19 See Id. (explaining rebuttable presumption created by use of E-Verify).}

^{20 See Id. at 1976-77 (laying out Arizona law).}

^{21 See Id. at 1976 (explaining relevant portions of Arizona law). Interesting to note is that the Arizona law prohibits state and local officials from making final determinations about work authorization on their own, yet there is no mechanism whereby they can obtain information regarding the work authorization of noncitizens. The Arizona law directs state and local officials to obtain information regarding immigration}

^{22 See Id. (explaining sanctions imposed by Arizona law). It should also be noted that, because state courts will be hearing charges brought for alleged violations of Arizona law, the state courts will also be the ones to determine whether or not the employment of an unauthorized alien was “knowingly,” which will be a different determination than under federal law, due to mandatory use of E-Verify. If an employer fails to use E-Verify, yet followed the I-9 procedure required by federal law, they would still not be able to effectively challenge a charge of knowingly hiring an unauthorized alien. It could be argued that any lack of knowledge that a worker is unauthorized was due to the employer’s failure to use E-Verify as required by Arizona law. This also means that actions taken which would provide a defense under federal law would be insufficient under Arizona law.}

^{23 See Julie Myers Wood, Supreme Court Affirms a State Immigration Law--What it Means, 2011 Emerging Issues 5686, 5687 (June 2011) (noting identity of plaintiffs in Chamber of Commerce v. Whiting).}

^{24 See Whiting, 131 S.Ct. at 1979 (explaining and rejecting Chamber’s argument regarding licensing laws). Chamber’s argument seemingly asserted that a licensing law is more comprehensive than a law that merely prescribes licensing sanctions. This may also indicate that Arizona’s law is different in substance and purpose than the ordinary state function of licensing, but rather is an immigration regulation in disguise. This raises a question regarding why a  state may do what it ordinarily cannot simply by calling it by a different name.}

^{25 See Id. at 1977-79 (considering whether Arizona law is licensing law). The Court noted that Arizona’s definition of “license” is nearly identical to the definition of that term within the Administrative Procedure Act. Id. at 1978. It also found Arizona’s Inclusion of “documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies,” was acceptable. Id. Thus, the Court concluded that, “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.” Id. at 1981.}

^{26 See Id. at 1979 (explaining and rejecting Chamber’s argument for narrow reading of saving clause). Chamber argued that Congress’s concurrent repeal of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and enactment of IRCA support a narrow reading. Id. Specifically, Chamber argued that state licensing sanctions should only be available after a federal adjudication. Id. Prior to IRCA, AWPA prohibited hiring unauthorized workers, and outlined adjudicatory procedures for violations. Id. When Congress enacted IRCA and repealed AWPA, adjudications of employment of unauthorized workersfor agricultural work, which can result in suspension or revocation of labor certification, had rest on a prior finding of an IRCA violation for the first time. Id. The Court, however, found this to be merely evidence that Congress “eliminated that potential redundancy.” Id. Although Chamber argued that the elimination of a redundancy is further evidence that Congress intended uniformity in the law, rather than separate laws for each state, the Court again reverted to the plain text of the statute and the fact that the Arizona law claims to rely on federal determinations. Id. at 1979-80. The only federal determinations provided to the state, however, are those regarding immigration status as opposed to work authorization. Id. at 1992 (Breyer, J., dissenting).}

^{27 See Id. at 1981 (noting Chamber’s field pre-emption argument). Chamber argued that the Arizona law necessarily conflicted with federal law, because Congress had intended its legislation to be exclusive. Id. (quoting Brief for Petitioner at 39 Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011) (No. 09-115)).}

^{28 See Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (explaining field pre-emption).}

^{29 See Whiting, 131 S.Ct. at 1981 (“Arizona’s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws.”).}

^{30 Id. at 1983.}

^{31 See Id. (distinguishing from prior cases). The Court distinguishes from all of the cases cited by Chamber regarding state laws that upset the balance struck by federal law. The Court argues that all of these cases involved legislation of matters that are uniquely federal. Id. In this case, the Court explains, licensing laws are not a traditionally federal concern. Id. However, the Court fails to discuss that the Arizona law is a licensing sanction for immigration law violations, and that it has, and is intended to have, clear effects on immigration and employment of noncitizens.}

^{32 See Id. at 1984 (rejecting argument that discrimination will increase from Arizona law). Justice Breyer and Chamber argue that businesses are likely to discriminate in their hiring practices rather than risk license suspension or revocation
under the Arizona law. Id. The Court argues that such a result is unlikely because license suspension and revocation are sanctions only for knowing violations, and proclaims that, “An employer acting in good faith need have no fear of the sanctions.” Id. The Court also asserts that the Arizona law will not displace IRCA’s anti-discrimination provisions. Id. However, Congress foresaw potential for discrimination with the I-9 process alone, and thus contemporaneously prohibited discrimination in hiring practices based on national origin or citizenship status. See Andrew P.  Karabetsos, Immigration-Related Employment Discrimination Under IRCA, 82 Ill. B.J. 32, 32 (1994) (explaining Congress’s purpose for prohibition of discrimination in IRCA). Adding further verification requirements and further sanctions under state law can
only increase the potential for discrimination.}

^{33 Id. at 1985 (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).}

^{34 See Id. at 1985-86 (rejecting Chamber’s argument that Arizona law requiring E-Verify use is pre-empted by federal law). Chamber did not challenge Arizona’s E-Verify mandate on express pre-emption grounds because IIRIRA does not contain a pre-emption provision. See Id. at 1985 (noting that IIRIRA “contains no language circumscribing state action”).}

^{35 Id. at 1985.}

^{36 See Id. (discussing Executive Order 13465). President George W. Bush, in an Executive Order in 2008, required all federal contractors to use E-Verify and cited the Arizona law as support for the legitimacy of the Order. Id. He explained, when attacked on the grounds that E-Verify could not be made mandatory for anyone outside of the federal government, that he was acting in the same permissible way as Arizona by requiring E-Verify use, because IIRIRA only limits the authority of the Secretary of DHS to mandate E-Verify. Id. The Court did not discuss the significance of the fact that the Executive Order was also challenged, and that it was in this setting that the President spoke supportively of the Arizona law.}

^{37 See Id. at 1986 (explaining objectives of creating E-Verify). The Court stated that, “Congress’s objective in authorizing the development of E-Verify was to ensure reliability in employment authorization verification, combat counterfeiting of identity documents, and protect employee privacy.” Id.}

^{38 See Id. (finding that Arizona law does not conflict with congressional objectives). The Court, after noting the purposes of creating E-Verify, proclaimed that, “Arizona’s requirement that employers operating within its borders use E-Verify in no way obstructs achieving those aims.” Id.}

^{39 See Id. (rejecting Chamber’s argument that nationwide E-Verify use would result in federal resource drains). It should also be noted that the Court cited DHS for the opinion that “‘the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.” Id. (emphasis added). This says nothing about federal resources, nor does it predict potential results of state E-Verify mandates beyond those existing.}

^{40 See Id. (discussing statement made by DHS).}

^{41 See Id. at 1981-85 (acknowledging and rejecting Chamber’s implied pre-emption arguments). The Court briefly considers Chamber’s implied pre-emption arguments, citing sources such as the President and DHS as support for its conclusion, and ends by stating that its analysis cannot be a “freewheeling judicial inquiry.” Id.}

^{42 See U.S. Const. art. VI, § 1, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance Thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).}

^{43 See Gary Endelman & Cynthia Juarez Lange, State Immigration Legislation and the Preemption Doctrine, 1698 Corp. Law & Prac. Course Handbook Series 123, 127 (2008) (noting that Supreme Court has long recognized federal power to regulate immigration); see also Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787, 795 (2008) (recognizing that for over 100 years, immigration law governing admission and removal has been accepted as a virtually exclusive federal power).}

^{44 See INS v. Chadha, 462 U.S. 919, 940 (1983) (finding federal power to regulate immigration based upon Naturalization Clause). The primary issue in Chadha involved the constitutionality of legislative vetoes. Id. at 923. In contrast to the way legislative vetoes were usually exercised, to override administrative regulations, the veto in this case would have overturned an administrative adjudication. Id. at 923. The issue of federal power to regulate immigration was only raised as part of the Court’s response to the government’s assertion that Chadha’s claim was a non-justiciable political question. Id. at 940. In the course of rejecting that assertion, the Court stated that, “The plenary authority of Congress over aliens under Art. I, §8, cl. 4 is not open to question.” Id. Thus, because the basis of the federal power to regulate immigration was not a primary issue of the case, it is arguable that the Court did not thoroughly consider whether or not such power is in fact derived from the Naturalization Clause.}

^{45 U.S. Const. art. I, § 8, cl. 4.}

^{46 See, e.g., Edye v. Robertson (Head Money Cases), 112 U.S. 580, 600 (1884) (declaring Congress has “the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations”); see also Henderson v. Mayor of New York, 92 U.S. 259, 270 (1875) (finding federal power to regulate immigration as derivative of Commerce Clause powers). In Henderson, the Court struck down a New York statute requiring a tax to be paid for each immigrant arriving to the country at any New York port. Henderson, 92 U.S. at 260-61. The Court explained that regulation of navigation is included in the power to regulate foreign commerce, because it is “the principal means by which foreign intercourse is effected.” Id. at 270. The Court went further and asserted that the power to regulate navigation and, more specifically, the “admission of vessels” includes the power to regulate “admission of their cargo or their passengers.” Id. The Court further emphasized the influence on commerce by immigrants due to their labor and the wealth they bring with them. Id. Thus, the Court concluded that the state law was invalid for its encroachment upon the federal legislature’s power  to regulate commerce. Id. The Court summed up its conclusion by stating, “As already indicated, the provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power ‘to regulate commerce with foreign nations.’” Id. (quoting U.S. Const. art. I, § 8, cl 3). It makes sense that 1875 marked the beginning of the Court’s recognition of federal power to regulate immigration. That year also marked the beginning of the federal government’s exercise of its power to regulate immigration. Prior to 1875, the federal government had mostly left the area of immigration law alone, thus states were able to pass their own legislation. See generally Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993) (describing status immigration law before 1875).}

^{47 See, e.g., Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 603-04 (1889) (finding federal power to regulate immigration grounded in inherent powers of sovereignty); see also Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (finding power to regulate immigration as part of inherent power to conduct foreign relations). The Court has concluded in various cases that power to regulate immigration is based on inherent powers of sovereignty, or foreign affairs. In the Chinese Exclusion Case, the Court relied on inherent powers of sovereignty, explaining that, “Jurisdiction over its own territory to that extent is an incident of every independent nation. It is part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.” 130 U.S. at 603-04. Further along in the case, the Court listed some inherent powers of sovereignty as being “[t]he powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republic governments to the states, and admit subjects of other nations to citizenship.” Id. at 605. In Chy Lung, the Court emphasized specifically the inherent sovereignty power to conduct foreign affairs, asserting that regulation of immigration is included within that power. To illustrate the risks of the removing this power from the exclusive exercise of the federal government, the Court asserted, “If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.” 92 U.S. at 280. Thus, in order to effectively manage foreign affairs, the federal government must also have exclusive control over immigration law.}

^{48 See, e.g., Chinese Exclusion Case, 130 U.S. at 604 (emphasizing and describing inherent powers of sovereignty); see also Chy Lung, 92 U.S. at 279-80 (finding federal power to regulate immigration as part of inherent foreign affairs powers); see also Hines v. Davidowitz, 312 U.S. 52, 62-63 (1941) (finding federal power to regulate immigration as derivative of foreign affairs powers as evidenced by precedent and original intent). In the Chinese Exclusion Case, the Court asserted, in one of many such assertions throughout the opinion, that, “[T]he United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.” 130 U.S. at 604. Thus, for concerns that traditionally belong to a sovereignty, especially in those matters necessary to the independence and safety of the entire country, the federal government necessarily has control.
In Chy Lung, a California statute gave the state’s Commissioner of Immigration authority to determine if an arriving immigrant was: “‘lunatic, idiot, deaf, dumb, blind, crippled, or infirm, and is not accompanied by relatives who are able and willing to support him, or is likely to become a public charge, or has been a pauper in any other country, or is from sickness or disease (existing either at the time of sailing from the port of departure or at the time of his arrival in the State) a public charge, or likely soon to become so, or is a convicted criminal, or a lewd or debauched woman.’” 92 U.S. at 277. If an arriving immigrant fell into one of these categories as determined by the Commissioner, they would not be permitted to leave the vessel on which they arrived unless the master, owner or consignee gave a bond to ensure they would not create costs for the state. Id. Additionally, the Commissioner was allowed to charge the master, owner or consignee of the vessel various other fees. Id. at 277-78. The Court described the possible dangers of allowing states to regulate a subject, which has great potential for creating controversy with other nations, especially when a foreign nation’s citizens are found to fall into categories of “lunatic, idiot, deaf, dumb, blind, crippled, or infirm,” or other undesirable categorizations. In considering such a possibility, the Court posed the question, “[H]as the Constitution . . . done so foolish a thing as to leave it in the power of the States to pass laws whose enforcement renders the general government liable to just reclamations which it must answer, while it does not prohibit to the States the acts for which it is held responsible?”. Id. at 280. The Court concluded that, “The Constitution of the United States is no such instrument.” Id. The Court determined that the federal government must have the power to regulate immigration for, “If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.” Id. In Hines, the Court found that a Pennsylvania alien registration law was pre-empted by a federal alien registration law. 312 U.S. at 62-63. The Court relied on precedent and the Federalist papers, explaining: “[T]hat the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take away from the force and effect of such treaty or statute.” Id. Thus, the Court concluded that state law must be pre-empted because of “the supremacy of the national power in the general field of foreign affairs, including immigration.” Id. at 62.}

^{49 462 U.S. 919 (1983).}

^{50 See Id. at 940 (“The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question.”).}

^{51 See Id. at 923-24 (explaining background facts leading up to review by Supreme Court). Chadha came to the United States in 1966 with a nonimmigrant student visa, which expired in 1972. Id. at 923. In 1973, the INS commenced removal proceedings against Chadha. Id.}

^{52 See Id. (explaining Chadha’s immigration status leading up to review by Supreme Court). The facts of the case do not indicate that Chadha ever sought to adjust his status to that of lawful permanent resident, nor did he seek to extend the duration of his visa. The case notes that during removal proceedings, Chadha sought to suspend deportation on grounds of extreme hardship that would result from removal, but there is no indication that Chadha had any intention or desire to become naturalized. Id. The possibility exists that Chadha was not eligible for adjustment of status to lawful permanent resident, but that would not resolve the issue of the Court finding federal power to regulate nonimmigrant aliens under the Naturalization Clause.}

^{53 See, e.g., Edye v. Robertson (Head Money Cases), 112 U.S. 580 (1884); Henderson v. Mayor of New York, 92 U.S. 259 (1875); Chinese Exclusion Case, 130 U.S. 581; Chy Lung, 92 U.S. 275.}    

^{54 See Blum, supra note 11 (discussing pre-emption principles).}

^{55 See Blum, supra note 11 (discussing pre-emption principles).}

^{56 See U.S. Const. art. VI, § 1, cl. 2 (announcing supremacy of federal law over state law); see also Chadha, 462 U.S. at 940 (“The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question.”).}

^{57 Hillsborough Cnty. v. Automated Med. Labs., 471 U.S. 707, 713 (1985).}

^{58 See generally Gregory M. Dickinson, An Empirical Study of Obstacle Preemption in the Supreme Court, 89 Neb. L. Rev. 682, 684-84 (2011) (outlining various types of pre-emption)}

^{59 Automated Med., 471 U.S. at 713 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).}

^{60 See Id. (explaining physical impossibility and obstacle versions of implied conflict pre-emption).}

^{61 Id. (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)).}

^{62 Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).}

^{63 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1977-1979 (2011) (considering intended meaning of “license” in IRCA’s saving clause in relation to scope of Arizona law). The express pre-emption issue results in a battle of definitions, some of which are more or less supportive of the Arizona law. The Court determined that Arizona’s law is a licensing law because it fits within the meaning of that term as defined by various sources. Id. at 1977-78. There are not any very strong arguments challenging the Court’s finding.}   

^{64 See Id. (considering intended meaning of “license”). Chamber’s express pre-emption argument essentially asserts that Congress was only referring to a narrow class of licenses, as reflected by historical context.  Id. at 1979. This argument, however, fails to explain why, if Congress had intended this narrow meaning of a word with many legal connotations, it did not make that clear in the text of the statute.}

^{65 See, e.g., In re Tarble, 80 U.S. 397, 406 (1871) (explaining relation between state and federal law and supremacy of federal law); see also Prigg v. Pennsylvania, 41 U.S. 539, 617-18 (1842) (asserting that state laws cannot intrude into an area of law controlled by federal law). In Tarble, the Court explained the relation between state and federal law, and the way pre-emption occurs: The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments. Tarble, 80 U.S. at 406.}

^{66 Compare Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (undertaking implied pre-emption analysis), with Whiting, 131 S.Ct. at 1985 (expressing reluctance to inquire into congressional intent). The Court in Lohr referenced a longstanding practice of the Court of undertaking an analysis of conflicting state and federal laws to determine whether the state law is impliedly pre-empted. Lohr, 518 U.S. at 485. It thus concluded that its “analysis of the scope of the statute’s pre-emption is guided by our oft-repeated comment . . . that ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Id. (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). In Whiting, by contrast, the Court refused to conduct what it called a “‘freewheeling judicial inquiry’” into the congressional intent or legislative purpose. Whiting, 131 S.Ct. at 1985. Instead, the Whiting Court said it is Congress’s job to pre-empt state law. Id. The Court, however, did not explain how Congress could pre-empt state laws that it may not even be able to predict, especially decades into the future, if courts are unwilling to conduct any more than a scant inquiry into legislative purposes.}

^{67 See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000); United States v. Locke, 529 U.S. 89 (2000); Lohr, 518 U.S. 470; Cipollone v. Liggett Group. Inc., 505 U.S. 504 (1992); Hillsborough Cnty. V. Automated Med. Labs., 471 U.S. 707 (1985); Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982); DeCanas v. Bica, 424 U.S. 351 (1976); Retail Clerks v. Shermerhorn, 375 U.S. 96 (1963); Pennsylvania v. Nelson, 350 U.S. 497 (1956); Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597 (1915); Southern Ry. Co. v. R.R. Comm’n of Indiana, 236 U.S. 439 (1915); Houston v. Moore, 18 U.S. 1 (1820).}

^{68 18 U.S. 1 (1820).}

^{69 See Id. at 2-3 (explaining Pennsylvania law).}

^{70 See Id. (explaining state law). The Pennsylvania law imposed its own sanctions and procedure for adjudication for violations, on top of federal law regulating governing the same issue.}

^{71 See Id. at 5 (explaining exclusively federal power to govern militia).}

^{72 See Id. (explaining that exclusion of state law is necessary once federal legislation is passed). This type of pre-emption is essentially field pre-emption, in that state law is ousted from an area that federal law dominates, even though state law could exist in that area otherwise. See Automated Med., 471 U.S. at 713 (explaining various types of pre-emption).}

^{73 See Id. at 5-6 (explaining that state law must give way where inconsistent with federal law). Although the type of pre-emption considered was not identified, the description is consistent with implied conflict pre-emption. See Automated Med., 471 U.S. at 713 (explaining various types of pre-emption). Although the Court does not explain the meaning of “practically inconsistent,” it could arguably encompass both impossibility and frustration of objectives. Both of those types of pre-emption create inconsistencies between state and federal law as a practical matter.}

^{74 See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000) (undertaking rigorous implied pre- emption analysis).}

^{75 418 U.S. 470 (1996).}

^{76 See Id. at 485-86 (expressing support for investigation of Congress’s purpose for legislation as part of pre-emption analysis). The Court explained that legislative purpose can be discerned from the text of the statute, the “statutory framework,” the “structure and purpose of the statute as a whole,” and a “reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Id. at 486. The Whiting Court was arguably referring to such an analysis when it expressed disapproval of “freewheeling judicial inquir[ies],” because the Court did not take that approach. See Whiting, 131 S.Ct. at 1985 (expressing unwillingness to undertake further analysis of legislative purpose).}

^{77 Id. at 485 (quoting Retail Clerks v. Shermerhorn, 375 U.S. 96, 103 (1963)). The Retail Clerks Court considered whether a federal statute regarding safety requirements for medical devices pre-empted state negligence law. Id. at 474. After analyzing legislative purpose and congressional intent, the Court’s findings led it to conclude that the state common law was not pre-empted. Id. at 503. This case also demonstrates that implied pre-emption analyses will not always lead to invalidation of state law.}

^{78 Id. at 485-86 (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 530 (1992)).}

^{79 529 U.S. 861 (2000).}

^{80 See Id. at 867-68 (discussing federal regulation and pre-emption provision). The pre-emption provision stated: “Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.” Id. (quoting 15 U.S.C. §1392(d) (1988)). A separate provision contained a saving clause, which stated, “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” Id. at 868 (quoting § 1397(k)).}

^{81 See Id. at 865 (noting pre-emption provision of federal statute).}

^{82 See Id. at 868 (finding that state law fell within saving clause). The Court determined that the combination of the text of the pre-emption provision, which allowed for a “narrow reading that excludes common-law actions,” combined with the existence of the saving clause, supported the inference that common law tort actions were not explicitly pre-empted. Id. The Court concluded that, “the pre-emption clause must be so read.” Id.}

^{83 See Id. at 869 (discussing whether saving clause has effect upon implied pre-emption inquiry). The Court considered the possibility that, although the pre-emption provision sought to ensure that state law was not automatically pre-empted, it was not intended to foreclose the possibility that a state law that actually conflicts with federal law will be upheld. Id.}

^{84 Id.}

^{85 Id. at 870.}

^{86 See Id. at 869-72 (discussing limitations on effect of saving clause and congressional intent). The Court argued that it would not make sense for the saving clause to preserve all state law tort actions despite their potential to undermine federal objectives. Id. at 870. For example, the Court explains that the pre- emption provision itself was meant to “subject the industry to a single, uniform set of federal safety standards,” which would be undermined if conflicting state law was upheld. Id. at 871.}

^{87 Id. at 870 (quoting United States v. Locke, 529 U.S. 89, 106-07 (2000)).}

^{88 See Id. at 871 (“Why, in any event, would Congress not have wanted ordinary pre-emption principles to apply where an actual conflict with a federal objective is at stake?”).}

^{89 See Id. at 872 (noting that disposal of ordinary pre-emption analysis due to existence of saving clause “would take from those who would enforce a federal law the very ability to achieve the law’s congressionally mandated objectives that the Constitution, through the operation of ordinary pre-emption principles, seeks to protect”).}

^{90 Id. at 873.}

^{91 See Id. (concluding both types of implied pre- emption are equally relevant). The Court explained that both state laws creating impossibility or undermining federal objectives “are ‘nullified’ by the Supremacy Clause and it has [been] assumed that Congress would not want either kind of conflict.” Id.}

^{92 Id. at 874.}

^{93 Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1985 (2011); Geier, 529 U.S. at 906 (Stevens, J., dissenting).}

^{94 Compare Whiting, 131 S.Ct. at 1985 (2011) (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992)), with Geier, 529 U.S. at 906 (Stevens, J., dissenting) (“‘it is Congress [and federal agencies,] rather than the courts[,] that pre-emp[t] state law.’”).}

^{95 See Geier, 529 U.S. at 873 (responding to dissent’s argument). The Court argued that the dissent’s approach of imposing a strong presumption against pre- emption, as opposed to applying ordinary pre-emption principles, where a state law is found to be within the saving clause of a federal law, is undesirable. Id. The Court argued that, “A ‘special burden’ would also promise practical difficulty by further complicating well-established pre-emption principles that are already difficult to apply.” Id. The Court went on to note the various types of pre-emption to further illustrate how a “special burden” would confuse an already confusing doctrine. Id. The Court also noted that there are not clear lines between the two categories of implied pre-emption, but rather that they “often shade, one into the other.” Id. at 874.}

^{96 See Id. at 874 (expressing additional concerns about dissent’s approach). The Court asserted that the dissent’s “special burden” approach would result in legal uncertainty and “its inevitable systemwide costs (e.g., conflicts, delay, and expense).” Id. It speculated that the dissent’s approach stemmed more from its dislike of implied pre-emption analysis than sound reasoning. Id.}

^{97 Compare Whiting, 131 S.Ct. at 1975 (describing IIRIRA), with Geier, 529 U.S. at 877-79 (describing federal law regarding airbag installation and phase-in scheme).}

^{98 See Geier, 529 U.S. at 878 (describing passive restraint mechanisms as including “airbags, automatic belts, or other passive restraint technologies”).}

^{99 See Id. at 877-79 (explaining balance struck by federal law). The Court explained that the Department of Transportation considered much evidence when making decisions about regulations. Id. at 877. For example, it was shown that airbags alone could not make up for the safety that would be provided by a buckled seatbelt, and that airbags posed their own dangers. Id. Also, airbags were much more expensive than seatbelts and other passive restraints, raising the price of vehicles by $320, not including replacement costs after airbags are deployed. Id. at 878.}

^{100 See Id. at 879 (explaining lack of ceiling for any particular safety device). The federal law gave car manufacturers credit for 1.5 cars with passive restraints for each 1 car installed with airbags. Id. The DOT did not worry that this would result in universal airbag installation, without the mix of different passive restraints it sought, because of the “likelihood that manufacturers would install, not too many airbags too quickly, but too few or none at all[.]” Id.}

^{101 See Id. (describing phase-in process and need for development). The phase-in process began with a requirement that ten percent of cars be equipped with passive restraints, and increased over time until passive restraints would be required for all cars. Id. The Court determined that the phase-in system was meant to “allow more time for manufacturers to develop airbags or other, better, safer passive restraint systems. It would help develop information about the comparative effectiveness of different systems.” Id.}

^{102 See Id. at 881 (holding that state law is pre- empted as obstacle to federal objectives).}

^{103 See Id. at 864-65 (explaining grounds for holding). The Court summed up the reasoning leading to its holding: In effect, petitioners’ tort action depends upon its claim that manufacturers had a duty to install an airbag when they manufactured the 1987 Honda Accord. Such a state law- i.e., a rule of state tort law imposing such a duty-by its terms would have required manufacturers of all similar cars to install airbags rather than other passive restraint systems, such as automatic belts or passive interiors. It thereby would have presented an obstacle to the variety and mix of devices that the federal regulation sought .. . It thereby also would have stood as an obstacle to the gradual passive restraint phase-in that the federal regulation deliberately imposed . . . Because the rule of law for which petitioners contend would have stood “as an obstacle to the accomplishment and execution of” the important means-related federal objectives that we have just discussed, it is pre-empted. Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).}

^{104 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1975 (2011) (explaining relevant portions of IIRIRA); see also Id. at 1996 (citing various provisions of IIRIRA related to E-Verify bearing titles which include word “voluntary”). The federal statute prohibits the Secretary of Homeland Security from requiring anyone outside of the federal government to use E-Verify. Id. Nevertheless, it creates a rebuttable presumption of compliance with IRCA for anyone who used E-Verify to verify the employment authorization of an employee. Id.}

^{105 Compare Id. at 1975 (explaining that an employer who uses E-Verify may use that as rebuttable presumption against violation of IRCA), with Geier, 529 U.S. at 879 (explaining that voluntary installation of airbags resulted in extra credit given
to manufacturer under federal law).}

^{106 See Geier, 529 U.S. at 878 (explaining that federal law set “performance requirement for passive restraint devices and allow[ed] manufacturers to choose among different passive restraint mechanisms”).}

^{107 See Barrowclough, supra note 17, at 797 (explaining that use of E-Verify is voluntary, does not relieve employer of also completing I-9 forms, but creates rebuttable presumption of compliance with federal law).}

^{108 Compare Geier, 529 U.S. at 879 (discussing Department of Transportation’s decision not to require airbags due to concerns about their safety), with Rachel Feller, Pre-empting State E-Verify Regulations: A Case Study of Arizona’s Improper Legislation in the Field of “Immigration-Related Employment Practices”, Comment, 84 Wash. L. Rev. 289, 300-01 (2009) (discussing various flaws of E-Verify leading to inaccurate results).}

^{109 See Whiting, 131 S.Ct. at 1996 (Breyer, J., dissenting) (explaining that E-Verify is pilot program and voluntary in nature).}

^{110 See Geier, 529 U.S. at 869 (noting that state law fell within saving clause but finding that ordinary pre-emption principles still applied).}

^{111 Compare Whiting, 131 S.Ct. at 1985 (finding federal law does not prevent states from mandating E-Verify), with Geier, 529 U.S. at 881 (discussing conflict between state law and federal law). The Court in Geier found that state law requiring across the board installation of airbags conflicted with federal law requiring only ten percent of cars to have passive restraints, among which airbags were just one choice. 529 U.S. at 881. The Geier Court also found that the state law would undermine the phasing-in scheme created by federal law. Id. In Whiting, the Court concluded that federal law only limited the Secretary of Homeland Security’s ability to mandate E-Verify. 131 S.Ct. at 1985. The Court reached this conclusion despite numerous sections and subsections of IIRIRA regarding E-Verify containing the word “voluntary,” its requirement of the Secretary to widely publicize the fact that use of E-Verify is voluntary, the fact that E-Verify is a pilot program, and various reliability concerns with E-Verify. Id. at 1996 (Breyer, J., dissenting).}

^{112 See, e.g., Hines v. Davidowitz 312 U.S. 52, 66-67 (1941) (undertaking analysis of potential implied pre- emption of state alien registration law by federal alien registration law imposing different requirements and sanctions). The Court specifically endorses field pre-emption and various types of conflict pre-emption as appropriate grounds for invalidating state laws regulating immigration.}

^{113 312 U.S. 52 (1941).}

^{114 See Id. at 59-61 (explaining relevant details of state and federal laws).}

^{115 Id. at 67.}

^{116 See Id. (discussing implied conflict pre-emption). The Court specifically stated that its task was to “determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id.}

^{117 See Id. at 67-68 (emphasizing significance of issue and potential impact on foreign relations).}

^{118 Id. at 68.}

^{119 424 U.S. 351 (1976).}

^{120 See Id. at 352-53 (explaining that issue of case is whether or not California law regulating employment of unauthorized aliens is pre-empted). The California stated that, “[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 352. The Court considered whether or not it was pre-empted under field pre-emption or implied conflict pre-emption principles. Id. at 352-53.}

^{121 See Id. at 353 (noting relevant federal statute is INA).}

^{122 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1973-74 (2011) (explaining history of issue leading up to enactment of IRCA). The Court explains that IRCA explicitly deals with employment of aliens, as opposed to the INA, which did not. Id. Thus, the enactment of IRCA rendered DeCanas moot by undermining much of its reasoning.}

^{123 See Id. at 1974-75 (explaining IRCA’s system for employment authorization verification). In short, IRCA makes it a crime to knowingly hire an unauthorized alien, establishes I-9 form method of verification, imposes civil and criminal sanctions for violations, and creates a system for judicial resolution of violations. Id.}

^{124 See DeCanas, 424 U.S. at 357-58 (finding no indication that Congress intended to oust state law regulating employment of aliens). The Court noted that there was no wording within the federal statute, and no indication from the legislative history, that Congress had intended to oust state law. Id. It appeared as though the federal law simply left this area untouched, its central concern being “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” Id. at 359.}

^{125 See Id. at 356 (finding state law not pre-empted). The Court stated its holding by explaining that it could not “conclude that pre-emption is required either because ‘the nature of the . . . subject matter (regulation of employment of illegal aliens) permits no other conclusion,’ or because ‘Congress unmistakably so ordained’ that result.” Id. (quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)).}

^{126 See Id. at 356-57 (explaining traditional police power of states in area of employment). The Court gives as examples of the states’ police power over employment, “child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen’s compensation laws.” Id. at 356. The Court concludes that regulation of employment of unauthorized aliens is “certainly within the mainstream of such police power regulation.” Id. Arguably, the Court’s reasoning is seriously undermined today. First, the federal government, under OSHA (Occupational Safety and Health Act)regulates occupational health and safety. 29 U.S.C. §§ 651-677 (1970). Also, under the FLSA (Fair Labor Standards Act) the federal government regulates the minimum wage for any employee who, in any workweek, “engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce,” which covers a great majority of employment nationwide. 29 U.S.C. § 206 (2007). The federal government also regulates various other aspects of employment previously left to the states.}

^{127 Id. at 358.}

^{128 See Id. at 360-61 (noting Congress’s limited expressed concern regarding employment of unauthorized aliens). The Court explained that Congress had only expressed any concern regarding employment of unauthorized aliens by explicitly excluding it from a provision criminalizing harboring of undocumented aliens. Id. at 360. In other words, Congress had made certain not to unintentionally criminalize employment of unauthorized aliens, as a result of misguided statutory interpretations that might consider employment to be harboring. This, the Court argued, only displays a “peripheral concern,” which is not sufficient to oust state legislation. Id. at 360-61.}

^{129 See Id. at 363 (introducing issue of obstacle pre- emption). The Court explained, “There remains the question whether, although the INA contemplates some room for state legislation, [the California law] is nevertheless unconstitutional because it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the INA.” Id.}

^{130 See Id. (finding record from lower court insufficient on issue of obstacle pre-emption because that court had not reached that question). The Court of Appeals had decided that the state law was pre- empted on field pre-emption grounds, and thus had not reached the question of obstacle pre-emption. Id. Thus, the information required to determine the issue of obstacle pre-emption was lacking in the record provided to the Supreme Court. Id.}

^{131 See Id. at 365 (reversing lower court decision). The Court explained its decision, which it based solely on its field pre-emption analysis, by explaining that, “It suffices that this Court decide at this time that the Court of Appeal erred in holding that Congress in the INA precluded any state authority to regulate the employment of illegal aliens.”}

^{132 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1974-75 (2011) (summarizing DeCanas and noting subsequent enactment of IRCA).}

^{133 See DeCanas, 424 U.S. at 358 (noting lack of intent to preclude state regulation either from wording of federal law or legislative history).}

^{134 See Id. at 363 (finding record from lower court inadequate on issue of obstacle pre-emption because that court had not reached that question).}

^{135 See Id. (noting remaining question of implied pre-emption). The Court acknowledged that implied pre-emption was a possibility, but was simply unable to undertake such an analysis due to an inadequate lower court record. Id.}

^{136 See § 1101(a)(15) (listing nonimmigrant categories of admission and corresponding information); see also 8 C.F.R. § 274a.12 (2011) (outlining work authorization for various nonimmigrant categories). Nonimmigrant categories are admitted for varying lengths of time with varying eligibility for work. Among some categories eligible for work, employers of many such categories must receive certification from the Department of Labor before employing a noncitizen. Some workers authorized to work are only permitted to work for the sponsoring employer.}

^{137 See 8 U.S.C. § 1324(a) (2006) (announcing mandatory employment authorization verification process and sanctions for non-compliance).}

^{138 See Whiting, 131 S.Ct. at 1974 (noting ICE’s authority to bring charges against violators). Under § 1324(a), the Attorney General is required to designate an entity that will bring charges against employers who violate the federal law’s employment authorization verification requirements. ICE is the entity selected to do so.}

^{139 See § 1324a(h)(2) (announcing pre-emption of state and local law which would impose civil or criminal sanctions “other than through licensing and similar laws”).}

^{140 See Whiting, 131 S.Ct. at 2004 (Sotomayor, J., dissenting) (asserting that state licensing sanctions were intended by Congress to follow final determination of charges brought by ICE). Sotomayor argued that it makes no sense to read the saving clause as allowing states to determine whether employer violations of IRCA have occurred, because Congress has established a “specialized federal procedure” for judicial resolution of such violations. Sotomayor also notes that states lack access to the necessary information to make such determinations, and considers that to be evidence that Congress did not intend for states to adjudicate IRCA violations. Id. at 2003 (Sotomayor, J., dissenting).}

^{141 See Id. at 1996 (Breyer, J., dissenting) (noting section and subsection titles using word “voluntary”).}

^{142 See Id. (Breyer, J., dissenting) (noting statutory instructions for Secretary of Homeland Security).}

^{143 See, e.g., Collins Foods Int’l, Inc. v. INS, 948 F.2d 549, 554 (9th Cir. 1991); Etuk v. Slattery, 936 F.3d 1433, 1437 (2d Cir. 1991); Steiben v. INS, 932 F.2d 1225, 1228 (8th Cir. 1991); Nat’l Ctr. for Immigrants’ Rights v. INS, 913 F.2d 1350, 1367 (9th Cir. 1990); Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988); United States v. Jackson, 825 F.2d 853, 864 n.6 (5th Cir. 1987); EEOC v. Tortilleria “La Mejor”, 758 F. Supp. 585, 591 (E.D. Cal. 1991); United States v. Moreno-Duque, 718 F. Supp. 254, 259 (D.Vt. 1989).}

^{144 See, e.g., Etuk, 936 F.3d at 1437; Steiben, 932 F.2d at 1228; Nat’l Ctr., 913 F.2d at 1367; Jackson,825 F.2d at 864 n.6; Quality Inn, 846 F.2d at 704; Tortilleria, 758 F. Supp. At 591 (all concluding that purpose of IRCA’s employment provisions was to stem illegal immigration by making employment difficult to obtain).}

^{145 See, e.g., Collins Foods, 948 F.2d at 554 (holding that legislative history shows congressional intent to minimize burden on employers). Part of the balance Congress struck was to achieve its goals in a way that was the least burdensome to employers. In other words, Congress was not seeking to eliminate illegal immigration without consideration of such burdens. In doing so, Congress chose the I-9 method of employment authorization verification.}

^{146 See, e.g., Steiben, 932 F.2d at 1228 (noting congressional intent to limit illegal immigration in order to preserve legal immigration). The idea is that the door to legal immigration cannot be kept open if illegal immigration cannot be minimized.}

^{147 See, e.g., Moreno-Duque, 718 F. Supp. at 259 (finding that Congress intended to create misdemeanor criminal liability for employers who knowingly hire unauthorized workers).}

^{148 See Penny Star, Supreme Court Hears Challenge to Arizona Immigration Law—The One Signed by Gov. Janet Napolitano, CSNnews.com (Dec. 9, 2010), http://cnsnews.com/news/article/supreme-court-hears-challenge-arizona-immigration-law-one-signed-gov-janet-napolitano. At the time the Court heard Whiting, Napolitano had become Secretary of DHS and, thus, was no longer Governor of Arizona. The Governor who attended the Whiting hearings was Napolitano’s successor, Governor Jan Brewer.}

^{149 See Star, supra note 148 (quoting Napolitano’s explanation of reasons for Arizona law).}

^{150 Cf. Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 348 (2008) (finding state law must be pre- empted to avoid skewing balance struck by federal law). Here, because the Arizona law was intended to reduce illegal immigration by targeting employment, a primary incentive for immigration, the other federal objectives are impaired. First, mandatory use of E-Verify and harsh licensing sanctions increase, rather than minimize, the burden on employers. Second, although illegal immigration is targeted, potential for racial discrimination, inaccuracy of E-Verify results, and other effects of the Arizona results may have effects on legal immigration as well. Finally, although the Arizona law does not affect criminal liability, they do supplement the congressionally chosen consequences for IRCA violations.}

^{151 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1997 (2011) (Breyer, J., dissenting) (disagreeing with majority’s conclusion that Arizona’s E-Verify mandate is not in conflict with federal law). Justice Breyer declared that, “There is no reason to imply negatively from language telling the Secretary not to make the program mandatory, permission for the States to do so. There is no presumption that a State may modify the operation of a uniquely federal program like E–Verify.” Id. (Breyer, J., dissenting).}

^{152 See Id. at 1985 (relying on Executive Order 13465 and contemporaneous statements as support for constitutionality of Arizona law).}

^{153 See Id. at 1986 (discussing statement made by DHS).}

^{154 Cf. Id. at 1997 (Breyer, J., dissenting) (noting that legitimacy of Executive Order itself has not been determined).}

^{155 See Id. (noting Congress’s purposes for “authorizing the development of E-Verify”). Regardless of Congress’s purposes for creating E-Verify, those purposes do not address the fact that it was created as a pilot program, which was made voluntary from the start, and the fact that Congress has never expanded the scope of the Secretary of Homeland Security’s authority to mandate its use. Id. at 1996 (Breyer, J., dissenting). The Court does not address why Congress would limit the Secretary of Homeland Security’s ability to mandate use of E-Verify but left the states the power to do so. Arguably, if Congress took no issue with nationwide use of E-Verify, it would not have limited the Secretary of DHS’s authority to make sure a mandate.}

^{156 See U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”); see also Whiting, 131 S.Ct. at 2006-07 (Sotomayor, J., dissenting) (asserting that opinion of DHS carries little weight). The power to spend is inherent in the power to tax. Thus, Congress makes appropriations and balances the federal budget; DHS does not. As Justice Sotomayor points out in her dissent in Whiting, “It matters not whether the Executive Branch believes that the Government is now capable of handling the burdens of a mandatory system. Congressional intent controls, and Congress has repeatedly decided to keep the E-Verify program voluntary.” 131 S.Ct. at 2006-07.}

^{157 See generally Daniel B. Wood, After Arizona, Why Are 10 States Considering Immigration Bills?, The Christian Science Monitor (May 10, 2010), http://www.csmonitor.com/USA/Society/2010/0510/After-Arizona-why-are-10-states-considering-immigration-bills (noting significant increase in state immigration laws in recent years).}

^{158 See, e.g., United States v. Arizona, 641 F.3d 339 (9th Cir. 2011); Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010), vacated, 131 S.Ct. 2958 (2011).}

^{159  See Hazleton v. Lozano, 131 S.Ct. 2958, 2958 (vacating and remanding to third circuit for reconsideration in light of Whiting).}   

^{160 See generally Barrowclough, supra note 17, at 805- 16 (discussing various shortcomings of E-Verify). Arizona has paved the way for other state laws that go even further. See Wood, supra note 157 (discussing other states that have proposed or enacted immigration laws after Arizona). These laws come with additional concerns. See generally Nat’l Immigration Forum, supra note 6 (discussing adverse consequences of state immigration laws).}

^{161 641 F.3d 339 (9th Cir. 2011).}

^{162 See Id. at 343-44 (outlining Arizona law S.B. 1070).}

^{163 Id.}

^{164 See Id. at 344 (explaining procedural history of case).}

^{165 See Id. (stating grounds for appeal and affirmation of lower court’s decision).}

^{166 620 F.3d 170 (3d Cir. 2010), vacated, 131 S.Ct. 2958 (2011).}

^{167 See Hazleton, 620 F.3d at 176-81 (explaining local ordinances and factual and historical background).}

^{168 See Id. at 181 (summarizing the procedural background).}

^{169 See Id. at 183 (discussing standing and finding that no plaintiff had standing to challenge private cause of action). The sole portion of the lower court’s decision that the Court of Appeals reversed was the invalidation of the ordinance’s creation of a private cause of action. The court reversed based on lack of standing, rather than on the merits.}

^{170 See Hazleton v. Lozano, 131 S.Ct. at 2958 (vacating and remanding to third circuit).}

^{171 See Id. (vacating and remanding to third circuit). It is likely that “further consideration in light of Chamber of Commerce v. Whiting” will yield a result similar to Whiting.}

^{172 See Susan Guyett, Judge Blocks Part of Indiana Immigration Law, Reuters (Fri Jun. 24, 2011, 11:13 PM), http://www.reuters.com/article/2011/06/25/us-indiana-immigration-idUSTRE75O09R20110625 (discussing injunction issued to enjoin part of Indiana law); see also Nat’l Immigration Forum, supra note 6, at 17-30 (discussing potential state legislation and its possible implications); Wood, supra note 157 (discussing enjoinder of Alabama law).}

^{173 See U.S. Dep’t of Justice, supra note 7 (discussing Alabama law and legal challenge).}

^{174 See Nat’l Immigration Forum, supra note 6, at 17-26, http://www.immigrationforum.org/images/uploads/2010/SB 1070Report.pdf (discussing various proposals or discussions by state politicians regarding immigration laws); see also Illegal Immigration Reform and Enforcement Act of 2011, 2011 Ga. Laws Act 252 (codified as amended in scattered titles and sections of Ga. Code Ann.); Act of May 10, 2011, P.L. 171-2011, 2011 Ind. Legis. Serv. (codified as amended in scattered titles and sections of Ind. Code); Miss. Code Ann. § 71-11-3 (2008). Some of these laws have also been challenged or struck down. For example, recently passed George law has already been struck down in Georgia Latino Alliance for Human Rights. No. 1:11-CV-1804-TWT, 2011 WL 2520752 (N.D. Georgia June 27, 2011). Indiana law has been preliminarily enjoined. Guyett, supra note 172. Other such laws are also undergoing attacks or likely will in the future.}

^{175 See Lisa M. Seghetti, Stephen R. Viña & Karma Ester, Enforcing Immigration Law: The Role of State and Local Law Enforcement, Congressional Research Service, The Library of Congress, 4, 26 (2004) (explaining arguments regarding necessary training of local police to enforce immigration law). The report neutrally explains that immigration law is a “complex body of law,” which “requires extensive training and expertise to adequately enforce.” Id. It then explains two opposing views, one emphasizing the extensiveness of the necessary training, and the other which confidently asserts that state and local police are capable of learning the necessary information through currently available training programs. Id.}

^{176 See Seghetti, supra note 175, at 25 (discussing arguments regarding resources required for state and local enforcement). Both opponents and proponents of state and local enforcement of immigration law acknowledge that it would require resources to fund, although they disagree about how that might be accomplished. Id. There is, however, a definite possibility that significant state and local resources would need to be diverted for funding of such training. See Nat’l Immigration Forum, supra note 6, at 12-13 (summarizing predictions of costs to enforce S.B. 1070 made by one county in Arizona).}

^{177 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 2001 (2011) (Sotomayor, J., dissenting) (“Congress ensured that administrative orders finding violations of IRCA would be reviewed by federal judges with experience adjudicating immigration-related matters.”). Justice Sotomayor considered it significant that Congress established procedures for federal adjudication of violations of IRCA’s employment authorization verification procedures.}

^{178 See Id. at 2003 (Sotomayor, J., dissenting) (noting that “state courts [are] inexperienced in immigration matters”).}

^{179 See Nat’l Immigration Forum, supra note 6, at 8 (discussing Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act,” also known as S.B. 1070).}

^{180 See Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, 23-24 (2009) (discussing potential for threat to public safety as result of local enforcement); see also Nat’l Immigration Forum, supra note 6, at 15 (discussing threats to public safety from local police enforcement of immigration law); Seghetti, supra note 175, at 24 (summarizing debate about effects on public safety). It is significant to note that police themselves have voiced concern about their ability to effectively ensure public safety if viewed as immigration enforcement officers.}

^{181 See Nat’l Immigration Forum, supra note 6, at 15 (discussing source of threats to public safety). The article quotes the Tucson, Arizona Police Chief expressing concern regarding his prediction that the new Arizona law S.B. 1070 will make immigration enforcement a higher priority than other important police concerns, and further strain limited law enforcement budgets. Id. The article also discusses the potential for creating distrust of police within communities if police are seen as immigration officers. Id.}

^{182 Barrowclough, supra note 17, at 810-13 (discussing accuracy and due process difficulties of E-Verify). Despite the Whiting Court’s confidence with E-Verify, several studies have shown significant rates of inaccuracy. Id. Justice Breyer, dissenting in Whiting, also cited studies regarding high inaccuracy rates and expressed concern that noncitizens would have an even higher risk of inaccurate work authorization verification results as a result of name inconsistencies caused by misspellings of foreign names, as well as other factors. Whiting, 131 S.Ct. at 1996 (Breyer, J., dissenting). For example, in Hispanic cultures, including Mexican culture, every person has two surnames. See Dr. Manuel A. Perez- Quinones, Hispanic Last Names: Why Two of Them?, (March 2002), http://perez.cs.vt.edu/twolastnames (explaining Hispanics’ use of two last names). However, confusion occurs frequently when people assume that one of the surnames is a middle name, or that the first surname can be eliminated and the person can be listed only by their second surname. However, if a Hispanic name must be shortened, it would make more sense to eliminate the second surname instead of the first, as the first surname is paternal and the second is maternal. See Id. (explaining source of each last name).}

^{183 Barrowclough, supra note 17, at 809, 812-13 (discussing burdens on employers and employees). If E-Verify were mandated nationwide, all employers would have to maintain access to a computer and Internet connection, even if they had no other use or need for them. Also, employees must shoulder the burden of challenging a tentative non-confirmation, which requires the noncitizen to read or have translated documents in English, and travel to a Social Security Administration or USCIS office during those offices’ business hours, within eight days. Id. This is the minimum that employees would have to do, assuming there are no other complications.}

^{184 Barrowclough, supra note 17, at 813-14 (discussing potential for identity fraud with E-Verify). Ironically, the I-9 system is less likely to result in identity fraud because of its requirement that employers review documents that establish identity in addition to documents that establish work authorization. 8 U.S.C. § 1324a(b)(1)(B)-(D) (2006).}

^{185 See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000); United States v. Locke, 529 U.S. 89 (2000); Lohr, 518 U.S. 470; Cipollone v. Liggett Group. Inc., 505 U.S. 504 (1992); Hillsborough Cnty. V. Automated Med. Labs., 471 U.S. 707 (1985); Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982); DeCanas v. Bica, 424 U.S. 351 (1976); Retail Clerks v. Shermerhorn, 375 U.S. 96 (1963); Pennsylvania v. Nelson, 350 U.S. 497 (1956); Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597 (1915); Southern Ry. Co. v. R.R. Comm’n of Indiana, 236 U.S. 439 (1915); Houston v. Moore, 18 U.S. 1 (1820).}

^{186 Geier, 529 U.S. 861.}

^{187 See, e.g., Collins Foods Int’l, Inc. v. INS, 948 F.2d 549, 554 (9th Cir. 1991); Etuk v. Slattery, 936 F.3d 1433, 1437 (2d Cir. 1991); Steiben v. INS, 932 F.2d 1225, 1228 (8th Cir. 1991); Nat’l Ctr. for Immigrants’ Rights v. INS, 913 F.2d 1350, 1367 (9th Cir. 1990); Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988); United States v. Jackson, 825 F.2d 853, 864 n.6 (5th Cir. 1987); EEOC v. Tortilleria “La Mejor”, 758 F. Supp. 585, 591 (E.D. Cal. 1991); United States v. Moreno-Duque, 718 F. Supp. 254, 259 (D.Vt. 1989). These cases demonstrate frequent congressional objectives attributed to IRCA.}

^{188 See Barrowclough, supra note 17, at 805-14 (discussing negative effects of E-Verify mandates); see also Nat’l Immigration Forum, supra note 6 (discussing proposed or discussed state immigration laws and serious consequences).}