Chamber of Commerce of United States of America v. Whiting

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA ET AL. v. WHITING ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–115. Argued December 8, 2010—Decided May 26, 2011
The Immigration Reform and Control Act (IRCA) makes it “unlawful
for a person or other entity . . . 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.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio
late that prohibition may be subjected to federal civil and criminal
sanctions. IRCA also restricts the ability of States to combat em
ployment of unauthorized workers; the Act expressly preempts “any
State or local law imposing civil or criminal sanctions (other than
through licensing and similar laws) upon those who employ, or re
cruit or refer for a fee for employment, unauthorized aliens.”
§1324a(h)(2).
IRCA also requires employers to take steps to verify an employee’s
eligibility for employment. In an attempt to improve that verification
process in the Illegal Immigration Reform and Immigrant Responsi
bility Act (IIRIRA), Congress created E-Verify—an internet-based
system employers can use to check the work authorization status of
employees.
Against this statutory background, several States have recently
enacted laws attempting to impose sanctions for the employment of
unauthorized aliens through, among other things, “licensing and
similar laws.” Arizona is one of them. The Legal Arizona Workers
Act provides that the licenses of state employers that knowingly or
intentionally employ unauthorized aliens may be, and in certain cir
cumstances must be, suspended or revoked. That law also requires
that all Arizona employers use E-Verify.
The Chamber of Commerce of the United States and various busi
ness and civil rights organizations (collectively Chamber) filed this
2 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
Syllabus
federal preenforcement suit against those charged with administer
ing the Arizona law, arguing that the state law’s license suspension
and revocation provisions were both expressly and impliedly pre
empted by federal immigration law, and that the mandatory use of E-
Verify was impliedly preempted. The District Court found that the
plain language of IRCA’s preemption clause did not invalidate the
Arizona law because the law did no more than impose licensing con
ditions on businesses operating within the State. Nor was the state
law preempted with respect to E-Verify, the court concluded, because
although Congress had made the program voluntary at the national
level, it had expressed no intent to prevent States from mandating
participation. The Ninth Circuit affirmed.
Held: The judgment is affirmed.
558 F. 3d 856, affirmed.
THE CHIEF JUSTICE delivered the opinion of the Court with respect
to Parts I and II–A, concluding that Arizona’s licensing law is not ex
pressly preempted.
Arizona’s licensing law falls well within the confines of the author
ity Congress chose to leave to the States and therefore is not ex
pressly preempted. While IRCA prohibits States from imposing “civil
or criminal sanctions” on those who employ unauthorized aliens, it
preserves state authority to impose sanctions “through licensing and
similar laws.” §1324a(h)(2). That is what the Arizona law does—it
instructs courts to suspend or revoke the business licenses of in-state
employers that employ unauthorized aliens. The definition of “li
cense” contained in the Arizona statute largely parrots the definition
of “license” that Congress codified in the Administrative Procedure
Act (APA).
The state statute also includes within its definition of “license”
documents such as articles of incorporation, certificates of partner
ship, and grants of authority to foreign companies to transact busi
ness in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has
clear counterparts in APA and dictionary definitions of the word “li
cense.” And even if a law regulating articles of incorporation and the
like is not itself a “licensing law,” it is at the very least “similar” to
one, and therefore comfortably within the savings clause. The
Chamber’s argument that the Arizona law is not a “licensing” law be
cause it operates only to suspend and revoke licenses rather than to
grant them is without basis in law, fact, or logic.
The Chamber contends that the savings clause should apply only to
certain types of licenses or only to license revocation following an
IRCA adjudication because Congress, when enacting IRCA, elimi
nated unauthorized worker prohibitions and associated adjudication
procedures in another federal statute. But no such limits are even
Cite as: 563 U. S. ____ (2011) 3
Syllabus
remotely discernible in the statutory text.
The Chamber’s reliance on IRCA’s legislative history to bolster its
textual and structural arguments is unavailing given the Court’s
conclusion that Arizona’s law falls within the plain text of the savings
clause. Pp. 9–15.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY,
and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal
law. At its broadest, the Chamber’s argument is that Congress in
tended the federal system to be exclusive. But Arizona’s procedures
simply implement the sanctions that Congress expressly allowed the
States to pursue through licensing laws. Given that Congress spe
cifically preserved such authority for the States, it stands to reason
that Congress did not intend to prevent the States from using appro
priate tools to exercise that authority.
And here Arizona’s law closely tracks IRCA’s provisions in all ma
terial respects. For example, it adopts the federal definition of who
qualifies as an “unauthorized alien,” compare 8 U. S. C. §1324a(h)(3)
with Ariz. Rev. Stat. Ann. §23–211(11); provides that state investiga
tors must verify the work authorization of an allegedly unauthorized
alien with the Federal Government, making no independent deter
mination of the matter, §23–212(B); and requires a state court to
“consider only the federal government’s determination,” §23–212(H).
The Chamber’s more general contention that the Arizona law is
preempted because it upsets the balance that Congress sought to
strike in IRCA also fails. The cases on which the Chamber relies in
making this argument all involve uniquely federal areas of interest,
see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341.
Regulating in-state businesses through licensing laws is not such an
area. And those cases all concern state actions that directly inter
fered with the operation of a federal program, see, e.g., id., at 351.
There is no similar interference here.
The Chamber asserts that employers will err on the side of dis
crimination rather than risk the “ ‘business death penalty’ ” by “hir
ing unauthorized workers.” That is not the choice. License termina
tion is not an available sanction for merely hiring unauthorized
workers, but is triggered only by far more egregious violations. And
because the Arizona law covers only knowing or intentional viola
tions, an employer acting in good faith need not fear the law’s sanc
tions. Moreover, federal and state antidiscrimination laws protect
against employment discrimination and provide employers with a
strong incentive not to discriminate. Employers also enjoy safe har
bors from liability when using E-Verify as required by the Arizona
law. The most rational path for employers is to obey both the law
4 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
Syllabus
barring the employment of unauthorized aliens and the law prohibit
ing discrimination. There is no reason to suppose that Arizona em
ployers will choose not to do so. Pp. 15–22.
THE CHIEF JUSTICE delivered the opinion of the Court with respect
to Part III–A, concluding that Arizona’s E-Verify mandate is not im
pliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedly
preempted. The IIRIRA provision setting up E-Verify contains no
language circumscribing state action. It does, however, constrain
federal action: absent a prior violation of federal law, “the Secretary
of Homeland Security may not require any person or . . . entity” out
side the Federal Government “to participate in” E-Verify. IIRIRA,
§402(a), (e). The fact that the Federal Government may require the
use of E-Verify in only limited circumstances says nothing about
what the States may do. The Government recently argued just that
in another case and approvingly referenced Arizona’s law as an ex
ample of a permissible use of E-Verify when doing so.
Moreover, Arizona’s use of E-Verify does not conflict with the fed
eral scheme. The state law requires no more than that an employer,
after hiring an employee, “verify the employment eligibility of the
employee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And
the consequences of not using E-Verify are the same under the state
and federal law—an employer forfeits an otherwise available rebut
table presumption of compliance with the law. Pp. 23–24.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY,
and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way ob
structs achieving the aims of the federal program. In fact, the Gov
ernment has consistently expanded and encouraged the use of E-
Verify, and Congress has directed that E-Verify be made available in
all 50 States. And the Government has expressly rejected the Cham
ber’s claim that the Arizona law, and those like it, will overload the
federal system. Pp. 24–25.
ROBERTS, C. J., delivered the opinion of the Court, except as to Parts
II–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion
in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and con
curred in the judgment. BREYER, J., filed a dissenting opinion, in which
GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN,
J., took no part in the consideration or decision of the case.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–115
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA, ET AL., PETITIONERS v. MICHAEL
B. WHITING ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 26, 2011]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to Parts II–B and III–B.*
Federal immigration law expressly preempts “any State
or local law imposing civil or criminal sanctions (other
than through licensing and similar laws) upon those who
employ . . . unauthorized aliens.” 8 U. S. C. §1324a(h)(2).
A recently enacted Arizona statute—the Legal Arizona
Workers Act—provides that the licenses of state employ
ers that knowingly or intentionally employ unauthorized
aliens may be, and in certain circumstances must be, sus
pended or revoked. The law also requires that all
Arizona employers use a federal electronic verification
system to confirm that the workers they employ are
legally authorized workers. The question presented is
whether federal immigration law preempts those provi
sions of Arizona law. Because we conclude that the State’s
licensing provisions fall squarely within the federal stat
ute’s savings clause and that the Arizona regulation does
——————
*JUSTICE THOMAS joins Parts I, II–A, and III–A of this opinion and
concurs in the judgment.
2 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
Opinion of the Court
not otherwise conflict with federal law, we hold that the
Arizona law is not preempted.
I
A
In 1952, Congress enacted the Immigration and Nation
ality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101et seq. That statute established a “comprehensive federal
statutory scheme for regulation of immigration and natu
ralization” and set “the terms and conditions of admission
to the country and the subsequent treatment of aliens
lawfully in the country.” De Canas v. Bica, 424 U. S. 351,
353, 359 (1976).
In the years following the enactment of the INA, several
States took action to prohibit the employment of indi
viduals living within state borders who were not lawful
residents of the United States. For example, in 1971 Cali
fornia passed a law providing 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.” 1971
Cal. Stats. ch. 1442, §1(a). The California law imposed
fines ranging from $200 to $500 for each violation of this
prohibition. §1(b). At least 11 other States enacted provi
sions during that same time period proscribing the em
ployment of unauthorized aliens.1
We first addressed the interaction of federal immigra
tion law and state laws dealing with the employment of
unauthorized aliens in De Canas, 424 U. S. 351. In that
——————
1 See Conn. Gen. Stat. §31–51k (1973) (enacted 1972); Del. Code Ann.,
Tit. 19, §705 (Cum. Supp. 1978) (enacted 1976); Fla. Stat. §448.09(1981) (enacted 1977); Kan. Stat. Ann. §21–4409 (1981) (enacted 1973);
1985 La. Acts p. 1894; 1977 Me. Acts p. 171; 1976 Mass. Acts p. 641;
Mont. Code Ann. §41–121 (1977 Cum. Supp.); N. H. Rev. Stat. Ann.
§275–A:4–a (1986 Cum. Supp.) (enacted 1976); 1977 Vt. Laws p. 320;
1977 Va. Acts ch. 438.
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
case, we recognized that the “[p]ower to regulate immi
gration is unquestionably . . . a federal power.” Id., at 354.
At the same time, however, we noted that the “States
possess broad authority under their police powers to
regulate the employment relationship to protect workers
within the State,” id., at 356, that “prohibit[ing] the know
ing employment . . . of persons not entitled to lawful resi
dence in the United States, let alone to work here, is
certainly within the mainstream of [the State’s] police
power,” ibid., and that the Federal Government had “at
best” expressed “a peripheral concern with [the] employ
ment of illegal entrants” at that point in time, id., at 360.
As a result, we declined to hold that a state law assessing
civil fines for the employment of unauthorized aliens was
preempted by federal immigration law.
Ten years after De Canas, Congress enacted the Immi
gration Reform and Control Act (IRCA), 100 Stat. 3359.
IRCA makes it “unlawful for a person or other entity . . . to
hire, or to recruit or refer for a fee, for employment in the
United States an alien knowing the alien is an unauthor
ized alien.” 8 U. S. C. §1324a(a)(1)(A). IRCA defines an
“unauthorized alien” as an alien who is not “lawfully
admitted for permanent residence” or not otherwise au
thorized by the Attorney General to be employed in the
United States. §1324a(h)(3).
To facilitate compliance with this prohibition, IRCA
requires that employers review documents establishing
an employee’s eligibility for employment. §1324a(b). An
employer can confirm an employee’s authorization to work
by reviewing the employee’s United States passport, resi
dent alien card, alien registration card, or other document
approved by the Attorney General; or by reviewing a
combination of other documents such as a driver’s license
and social security card. §1324a(b)(1)(B)–(D). The em
ployer must attest under penalty of perjury on Depart
ment of Homeland Security Form I–9 that he “has verified
4 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
Opinion of the Court
that the individual is not an unauthorized alien” by re
viewing these documents. §1324a(b)(1)(A). The form I–9
itself “and any information contained in or appended to [it]
. . . may not be used for purposes other than for enforce
ment of” IRCA and other specified provisions of federal
law. §1324a(b)(5).
Employers that violate IRCA’s strictures may be sub
jected to both civil and criminal sanctions. Immigration
and Customs Enforcement, an entity within the Depart
ment of Homeland Security, is authorized to bring charges
against a noncompliant employer under §1324a(e). De
pending on the circumstances of the violation, a civil fine
ranging from $250 to $16,000 per unauthorized worker
may be imposed. See §1324a(e)(4)(A); 73 Fed. Reg. 10136(2008). Employers that engage in a pattern or practice
of violating IRCA’s requirements can be criminally prose
cuted, fined, and imprisoned for up to six months.
§1324a(f)(1). The Act also imposes fines for engaging in
“unfair immigration-related employment practice[s]” such
as discriminating on the basis of citizenship or national
origin. §1324b(a)(1); see §1324b(g)(2)(B). Good-faith com
pliance with IRCA’s I–9 document review requirements
provides an employer with an affirmative defense if
charged with a §1324a violation. §1324a(a)(3).
IRCA also restricts the ability of States to combat em
ployment of unauthorized workers. The Act expressly
preempts “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.” §1324a(h)(2). Under
that provision, state laws imposing civil fines for the
employment of unauthorized workers like the one we
upheld in De Canas are now expressly preempted.
In 1996, in an attempt to improve IRCA’s employment
verification system, Congress created three experimental
complements to the I–9 process as part of the Illegal Im
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
migration Reform and Immigrant Responsibility Act
(IIRIRA), 110 Stat. 3009–655, note following 8 U. S. C.
§1324a. Arizona Contractors Assn., Inc. v. Candelaria,
534 F. Supp. 2d 1036, 1042 (Ariz. 2008); see 8 U. S. C.
§1324a(d). Only one of those programs—E-Verify—
remains in operation today. Originally known as the
“Basic Pilot Program,” E-Verify “is an internet-based
system that allows an employer to verify an employee’s
work-authorization status.” Chicanos Por La Causa, Inc.
v. Napolitano, 558 F. 3d 856, 862 (CA9 2009). An em
ployer submits a request to the E-Verify system based on
information that the employee provides similar to that
used in the I–9 process. In response to that request,
the employer receives either a confirmation or a tentative
nonconfirmation of the employee’s authorization to work.
An employee may challenge a nonconfirmation report. If
the employee does not do so, or if his challenge is unsuc
cessful, his employment must be terminated or the Fed
eral Government must be informed. See ibid.In the absence of a prior violation of certain federal
laws, IIRIRA prohibits the Secretary of Homeland Secu
rity from “requir[ing] any person or . . . entity” outside the
Federal Government “to participate in” the E-Verify pro
gram, §402(a), (e), 110 Stat. 3009–656 to 3009–658. To
promote use of the program, however, the statute provides
that any employer that utilizes E-Verify “and obtains
confirmation of identity and employment eligibility in
compliance with the terms and conditions of the program
. . . has established a rebuttable presumption” that it has
not violated IRCA’s unauthorized alien employment pro
hibition, §402(b)(1), id., at 3009–656 to 3009–657.
B
Acting against this statutory and historical background,
several States have recently enacted laws attempting to
impose sanctions for the employment of unauthorized
6 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
Opinion of the Court
aliens through, among other things, “licensing and similar
laws,” 8 U. S. C. §1324a(h)(2).2 Arizona is one of them.
The Legal Arizona Workers Act of 2007 allows Arizona
courts to suspend or revoke the licenses necessary to do
business in the State if an employer knowingly or inten
tionally employs an unauthorized alien. Ariz. Rev. Stat.
Ann. §§23–211, 212, 212.01 (West Supp. 2010) (citing 8
U. S. C. §1324a).
Under the Arizona law, if an individual files a complaint
alleging that an employer has hired an unauthorized
alien, the attorney general or the county attorney first
verifies the employee’s work authorization with the Fed
eral Government pursuant to 8 U. S. C. §1373(c). Ariz.
Rev. Stat. Ann. §23–212(B). Section 1373(c) provides that
the Federal Government “shall respond to an inquiry by a”
State “seeking to verify or ascertain the citizenship or
immigration status of any individual . . . by providing the
requested verification or status information.” The Arizona
law expressly prohibits state, county, or local officials from
attempting “to independently make a final determination
on whether an alien is authorized to work in the United
States.” Ariz. Rev. Stat. Ann. §23–212(B). If the §1373(c)
inquiry reveals that a worker is an unauthorized alien,
the attorney general or the county attorney must notify
United States Immigration and Customs Enforcement offi
cials, notify local law enforcement, and bring an action
against the employer. §23–212(C)(1)–(3), (D).
When a complaint is brought against an employer un
der Arizona law, “the court shall consider only the fed
eral government’s determination pursuant to” 8 U. S. C.
——————
2 See, e.g., Colo. Rev. Stat. Ann. §8–17.5–102 (2008); Miss. Code Ann.
§71–11–3(7)(e) (Supp. 2010); Mo. Rev. Stat. §§285–525, 285–535 (2009
Cum. Supp.); Pa. Stat. Ann., Tit. 73, §820.311 (Purdon Supp. 2010);
S. C. Code Ann. §41–8–50(D)(2) (Supp. 2010); Tenn. Code Ann. §50–1–
103(d) (2008); Va. Code Ann. §2.2–4311.1 (Lexis 2008); W. Va. Code
Ann. §21–1B–7 (Lexis Supp. 2010).
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
§1373(c) in “determining whether an employee is an unau
thorized alien.” §23–212(H). Good-faith compliance with
the federal I–9 process provides employers prosecuted by
the State with an affirmative defense. §23–212(J).
A first instance of “knowingly employ[ing] an unauthor
ized alien” requires that the court order the employer to
terminate the employment of all unauthorized aliens and
file quarterly reports on all new hires for a probationary
period of three years. §23–212(A), (F)(1)(a)–(b). The court
may also “order the appropriate agencies to suspend all
licenses . . . that are held by the employer for [a period]
not to exceed ten business days.” §23–212(F)(1)(d). A
second knowing violation requires that the adjudicating
court “permanently revoke all licenses that are held by the
employer specific to the business location where the unau
thorized alien performed work.” §23–212(F)(2).
For a first intentional violation, the court must order
the employer to terminate the employment of all unau
thorized aliens and file quarterly reports on all new hires
for a probationary period of five years. §23–212.01(A),
(F)(1)(a)–(b). The court must also suspend all the
employer’s licenses for a minimum of 10 days. §23–
212.01(F)(1)(c). A second intentional violation requires
the permanent revocation of all business licenses. §23–
212.01(F)(2).
With respect to both knowing and intentional violations,
a violation qualifies as a “second violation” only if it oc
curs at the same business location as the first violation,
during the time that the employer is already on probation
for a violation at that location. §23–212(F)(3)(a)–(b); §23–
212.01(F)(3)(a)–(b).
The Arizona law also requires that “every employer,
after hiring an employee, shall verify the employment
eligibility of the employee” by using E-Verify. §23–
8 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion of the Court
214(A).3 “[P]roof of verifying the employment authoriza
tion of an employee through the e-verify program creates a
rebuttable presumption that an employer did not know
ingly employ an unauthorized alien.” §23–212(I).
C
The Chamber of Commerce of the United States and
various business and civil rights organizations (collec
tively Chamber of Commerce or Chamber) filed a pre
enforcement suit in federal court against those charged
with administering the Arizona law: more than a dozen
Arizona county attorneys, the Governor of Arizona, the
Arizona attorney general, the Arizona registrar of contrac
tors, and the director of the Arizona Department of Reve
nue (collectively Arizona).4 The Chamber argued that the
Arizona law’s provisions allowing the suspension and
revocation of business licenses for employing unauthorized
aliens were both expressly and impliedly preempted by
federal immigration law, and that the mandatory use of
E-Verify was impliedly preempted.
The District Court held that Arizona’s law was not pre
empted. 534 F. Supp. 2d 1036. It found that the plain
language of IRCA’s preemption clause did not preempt the
——————
3 Several States have passed statutes mandating the use of E-Verify.
See, e.g., Miss. Code Ann. §71–11–3(3)(d), (4)(b)(i) (Supp. 2010); S. C.
Code Ann. §41–8–20(B)–(C) (Supp. 2010); Utah Code Ann. §13–47–
201(1) (Lexis Supp. 2010); Va. Code Ann. §40.1–11.2 (Lexis Supp.
2010).
4 No suits had been brought under the Arizona law when the com
plaint in this case was filed. As of the date that Arizona submitted its
merits brief to this Court only three enforcement actions had been
pursued against Arizona employers. See Arizona v. Waterworld Ltd.
Partnership, No. CV2009–038848 (Maricopa Cty. Super. Ct., filed Dec.
21, 2009) (resolved by consent judgment); Arizona v. Danny’s Subway
Inc., No. CV2010–005886 (Maricopa Cty. Super. Ct., filed Mar. 9, 2010)
(resolved by consent decree); Arizona v. Scottsdale Art Factory, LLC,
No. CV2009–036359 (Maricopa Cty. Super. Ct., filed Nov. 18, 2009)
(pending).
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
Arizona law because the state law does no more than
impose licensing conditions on businesses operating
within the State. Id., at 1045–1046. With respect to E-
Verify, the court concluded that although Congress had
made the program voluntary at the national level, it had
expressed no intent to prevent States from mandating
participation. Id., at 1055–1057. The Court of Appeals
affirmed the District Court in all respects, holding that
Arizona’s law was a “ ‘licensing and similar law[]’ ” falling
within IRCA’s savings clause and that none of the state
law’s challenged provisions was “expressly or impliedly
preempted by federal policy.” 558 F. 3d, at 860, 861, 866.
We granted certiorari. 561 U. S. ___ (2010).
II
The Chamber of Commerce argues that Arizona’s law
is expressly preempted by IRCA’s text and impliedly pre
empted because it conflicts with federal law. We address
each of the Chamber’s arguments in turn.
A
When a federal law contains an express preemption
clause, we “focus on the plain wording of the clause, which
necessarily contains the best evidence of Congress’ pre
emptive intent.” CSX Transp., Inc. v. Easterwood, 507
U. S. 658, 664 (1993).
IRCA expressly preempts States from imposing “civil or
criminal sanctions” on those who employ unauthorized
aliens, “other than through licensing and similar laws.” 8
U. S. C. §1324a(h)(2). The Arizona law, on its face, pur
ports to impose sanctions through licensing laws. The
state law authorizes state courts to suspend or revoke an
employer’s business licenses if that employer knowingly or
intentionally employs an unauthorized alien. Ariz. Rev.
Stat. Ann. §23–212(A) and (F); §23–212.01(A) and (F).
The Arizona law defines “license” as “any agency permit,
10 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion of the Court
certificate, approval, registration, charter or similar form
of authorization that is required by law and that is issued
by any agency for the purposes of operating a business in”
the State. §23–211(9)(a). That definition largely parrots
the definition of “license” that Congress codified in the
Administrative Procedure Act. See 5 U. S. C. §551(8)
(“ ‘license’ includes the whole or a part of an agency per
mit, certificate, approval, registration, charter, member
ship, statutory exemption or other form of permission”).
Apart from that general definition, the Arizona law
specifically includes within its definition of “license” docu
ments such as articles of incorporation, certificates of
partnership, and grants of authority to foreign companies
to transact business in the State. Ariz. Rev. Stat. Ann.
§23–211(9). These examples have clear counterparts in
the APA definition just quoted. See 5 U. S. C. §551(8)
(defining “license” as including a “registration” or “charter”).
A license is “a right or permission granted in accordance
with law . . . to engage in some business or occupation, to
do some act, or to engage in some transaction which but
for such license would be unlawful.” Webster’s Third New
International Dictionary 1304 (2002). Articles of incorpo
ration and certificates of partnership allow the formation
of legal entities and permit them as such to engage in
business and transactions “which but for such” authoriza
tion “would be unlawful.” Ibid.; see Ariz. Rev. Stat. Ann.
§§10–302, 302(11) (West 2004) (articles of incorporation
allow a corporation “to carry out its business and affairs”
and to “[c]onduct its business”); see also §10–202(A)(3)
(West Supp. 2010). As for state-issued authorizations for
foreign businesses to operate within a State, we have re
peatedly referred to those as “licenses.” See, e.g., Heli
copteros Nacionales de Colombia, S. A. v. Hall, 466 U. S.
408, 417 (1984); G. D. Searle & Co. v. Cohn, 455 U. S. 404,
413, n. 8 (1982); Rosenberg Bros. & Co. v. Curtis Brown
Co., 260 U. S. 516, 518 (1923). Moreover, even if a law
Cite as: 563 U. S. ____ (2011) 11
Opinion of the Court
regulating articles of incorporation, partnership certifi
cates, and the like is not itself a “licensing law,” it is at
the very least “similar” to a licensing law, and therefore
comfortably within the savings clause. 8 U. S. C.
§1324a(h)(2).5
The Chamber and the United States as amicus argue
that the Arizona law is not a “licensing” law because it
operates only to suspend and revoke licenses rather than
to grant them. Again, this construction of the term runs
contrary to the definition that Congress itself has codified.
See 5 U. S. C. §551(9) (“ ‘licensing’ includes agency process
respecting the grant, renewal, denial, revocation, sus
pension, annulment, withdrawal, limitation, amendment,
modification, or conditioning of a license” (emphasis
added)). It is also contrary to common sense. There is no
basis in law, fact, or logic for deeming a law that grants
licenses a licensing law, but a law that suspends or re
vokes those very licenses something else altogether.
——————
5 JUSTICE BREYER recognizes that Arizona’s definition of the word
“license” comports with dictionaries’ treatment of the term, but argues
that “license” must be read in a more restricted way so as not to include
things such as “marriage licenses” and “dog licens[es].” Post, at 2, 12
(dissenting opinion). Luckily, we need not address such fanciful hy
potheticals; Arizona limits its definition of “license” to those state per
missions issued “for the purposes of operating a business” in the
State. Ariz. Rev. Stat. Ann. §23–211(9)(a) (West Supp. 2010).
JUSTICE BREYER’s primary concern appears to be that state permis
sions such as articles of incorporation and partnership certificates are
treated as “licensing and similar laws.” Because myriad other licenses
are required to operate a business, that concern is largely academic.
See §42–5005(A) (West 2006) (Corporations that receive “gross proceeds
of sales or gross income upon which a privilege tax is imposed . . . shall
make application to the department for a privilege license.” Such a
corporation “shall not engage or continue in business until the [corpora
tion] has obtained a privilege license.”). Suspending or revoking an
employer’s articles of incorporation will often be entirely redundant.
See §§42–5010, 5061–5076 (West 2006 and West Supp. 2010) (describ
ing when transaction privilege tax licenses are required).
12 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion of the Court
The Chamber also submits that the manner in which
Congress amended a related statute when enacting IRCA
supports a narrow interpretation of the savings clause.
The Migrant and Seasonal Agricultural Worker Protection
Act (AWPA), 29 U. S. C. §1801 et seq., requires employers
to secure a registration certificate from the Department
of Labor before engaging in any “farm labor contracting
activity.” §1811(a). Prior to IRCA, AWPA had contained
its own prohibition on hiring unauthorized workers, with
accompanying adjudication procedures. See §1813(a);
§1816(a) (1982 ed.) (repealed by IRCA, 100 Stat. 3372);
§1851(a)–(b) (1982 ed.) (amended by IRCA, 100 Stat.
3372). When Congress enacted IRCA, it repealed AWPA’s
separate unauthorized worker prohibition and eliminated
the associated adjudication process. Under the current
state of the law, an AWPA certification may be denied
based on a prior IRCA violation. §1813(a)(6) (2006 ed.).
And once obtained, that certification can be revoked be
cause of the employment of an unauthorized alien only
following a finding of an IRCA violation. Ibid.
The Chamber asserts that IRCA’s amendment of AWPA
shows that Congress meant to allow state licensing sanc
tions only after a federal IRCA adjudication, just as ad
verse action under AWPA can now be taken only through
IRCA’s procedures. But the text of IRCA’s savings clause
says nothing about state licensing sanctions being contin
gent on prior federal adjudication, or indeed about state
licensing processes at all. The simple fact that federal law
creates procedures for federal investigations and adjudica
tions culminating in federal civil or criminal sanctions
does not indicate that Congress intended to prevent States
from establishing their own procedures for imposing
their own sanctions through licensing. Were AWPA not
amended to conform with IRCA, two different federal
agencies would be responsible for administering two dif
ferent unauthorized alien employment laws. The conform
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ing amendments eliminated that potential redundancy
and centralized federal adjudicatory authority. That
hardly supports a conclusion that any state licensing
programs must also be contingent on the central federal
system.
In much the same vein, the Chamber argues that Con
gress’s repeal of “AWPA’s separate prohibition concerning
unauthorized workers belies any suggestion that IRCA
meant to authorize each of the 50 States . . . to impose
its own separate prohibition,” and that Congress instead
wanted uniformity in immigration law enforcement. Brief
for Petitioners 36. JUSTICE BREYER also objects to the
departure from “one centralized enforcement scheme”
under federal law. Post, at 7 (dissenting opinion). But
Congress expressly preserved the ability of the States to
impose their own sanctions through licensing; that—like
our federal system in general—necessarily entails the
prospect of some departure from homogeneity. And as for
“separate prohibition[s],” it is worth recalling that the
Arizona licensing law is based exclusively on the federal
prohibition—a court reviewing a complaint under the
Arizona law may “consider only the federal government’s
determination” with respect to “whether an employee is an
unauthorized alien.” §23–212(H).
Even more boldly, the Chamber contends that IRCA’s
savings clause was intended to allow States to impose
licensing sanctions solely on AWPA-related farm contract
ing licensees. AWPA specifically recognized that federal
regulation of farm contracting licensing was only “in
tended to supplement State law,” 29 U. S. C. §1871, and
the Chamber argues that the purpose of IRCA’s savings
clause was limited to preserving existing state farm con
tractor licensing programs. But here again no such limit
is remotely discernible in the statutory text. Absent any
textual basis, we are not inclined to limit so markedly
the otherwise broad phrasing of the savings clause. See
14 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion of the Court
United States v. Shreveport Grain & Elevator Co., 287
U. S. 77, 83 (1932) (“extrinsic aids to construction” may be
used “to solve, but not to create, an ambiguity” (emphasis
and internal quotation marks omitted)).
The Chamber argues that its textual and structural
arguments are bolstered by IRCA’s legislative history. We
have already concluded that Arizona’s law falls within the
plain text of IRCA’s savings clause. And, as we have said
before, Congress’s “authoritative statement is the statu
tory text, not the legislative history.” Exxon Mobil Corp.
v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005); see
also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S.
137, 149–150, n. 4 (2002). Whatever the usefulness of
relying on legislative history materials in general, the
arguments against doing so are particularly compelling
here. Beyond verbatim recitation of the statutory text, all
of the legislative history documents related to IRCA save
one fail to discuss the savings clause at all. The Senate
Judiciary Committee Report on the Senate version of
the law does not comment on it. See S. Rep. No. 99–132
(1985). Only one of the four House Reports on the law
touches on the licensing exception, see H. R. Rep. No. 99–
682, pt. 1, p. 58 (1986), and we have previously dismissed
that very report as “a rather slender reed” from “one
House of a politically divided Congress.” Hoffman, supra,at 149–150, n. 4. And the Conference Committee Report
does not discuss the scope of IRCA’s preemption provision
in any way. See H. Conf. Rep. No. 99–1000 (1986).6
——————
6 JUSTICE BREYER poses several rhetorical questions challenging our
reading of IRCA and then goes on to propose two seemingly alternative
views of the phrase “licensing and similar laws”—that it was meant to
refer to “employment-related licensing systems,” post, at 11 (dissenting
opinion) (emphasis deleted), or, even more narrowly, to “the licensing of
firms in the business of recruiting or referring workers for employment,
such as . . . state agricultural labor contractor licensing schemes,” post,
at 13. If we are asking questions, a more telling one may be why, if
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Opinion R the Court
IRCA expressly preempts some state powers dealing
with the employment of unauthorized aliens and it ex
pressly preserves others. We hold that Arizona’s licensing
law falls well within the confines of the authority Con
gress chose to leave to the States and therefore is not
expressly preempted.
B
As an alternative to its express preemption argument,
the Chamber contends that Arizona’s law is impliedly
preempted because it conflicts with federal law. At its
broadest level, the Chamber’s argument is that Congress
“intended the federal system to be exclusive,” and that any
state system therefore necessarily conflicts with federal
law. Brief for Petitioners 39. But Arizona’s procedures
simply implement the sanctions that Congress expressly
allowed Arizona to pursue through licensing laws. Given
that Congress specifically preserved such authority for the
States, it stands to reason that Congress did not intend to
prevent the States from using appropriate tools to exercise
——————
Congress had intended such limited exceptions to its prohibition on
state sanctions, it did not simply say so, instead of excepting “licensing
and similar laws” generally?
JUSTICE SOTOMAYOR takes a different tack. Invoking arguments that
resemble those found in our implied preemption cases, she concludes
that the Arizona law “falls outside” the savings clause and is expressly
preempted because it allows “state courts to determine whether a
person has employed an unauthorized alien.” Post, at 2 (dissenting
opinion). While JUSTICE BREYER would add language to the statute
narrowly limiting the phrase “licensing and similar laws” to specific
types of licenses, JUSTICE SOTOMAYOR creates an entirely new statutory
requirement: She would allow States to impose sanctions through
“licensing and similar laws” only after a federal adjudication. Such a
requirement is found nowhere in the text, and JUSTICE SOTOMAYOR does
not even attempt to link it to a specific textual provision.
It should not be surprising that the two dissents have sharply differ
ent views on how to read the statute. That is the sort of thing that can
happen when statutory analysis is so untethered from the text.
16 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion R the Court
that authority.
And here Arizona went the extra mile in ensuring that
its law closely tracks IRCA’s provisions in all material
respects. The Arizona law begins by adopting the federal
definition of who qualifies as an “unauthorized alien.”
Compare 8 U. S. C. §1324a(h)(3) (an “unauthorized alien”
is an alien not “lawfully admitted for permanent resi
dence” or not otherwise authorized by federal law to be
employed) with Ariz. Rev. Stat. Ann. §23–211(11) (adopt
ing the federal definition of “unauthorized alien”); see De
Canas, 424 U. S., at 363 (finding no preemption of state
law that operates “only with respect to individuals whom
the Federal Government has already declared cannot work
in this country”).
Not only that, the Arizona law expressly provides that
state investigators must verify the work authorization of
an allegedly unauthorized alien with the Federal Govern
ment, and “shall not attempt to independently make a
final determination on whether an alien is authorized to
work in the United States.” §23–212(B). What is more, a
state court “shall consider only the federal government’s
determination” when deciding “whether an employee is an
unauthorized alien.” §23–212(H) (emphasis added). As a
result, there can by definition be no conflict between state
and federal law as to worker authorization, either at the
investigatory or adjudicatory stage.7
——————
7 After specifying that a state court may consider “only” the federal
determination, the Arizona law goes on to provide that the federal
determination is “a rebuttable presumption of the employee’s lawful
status,” Ariz. Rev. Stat. Ann. §23–212(H) (West Supp. 2010). Arizona
explains that this provision does not permit the State to establish
unlawful status apart from the federal determination—the provision
could hardly do that, given the foregoing. It instead operates to “en
sur[e] that the employer has an opportunity to rebut the evidence
presented to establish a worker’s unlawful status.” Brief for Respon
dents 49 (emphasis added). Only in that sense is the federal determi
nation a “rebuttable presumption.” See Tr. of Oral Arg. 46–47. Giving
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The federal determination on which the State must rely
is provided under 8 U. S. C. §1373(c). See supra, at 6–7.
That provision requires the Federal Government to “verify
or ascertain” an individual’s “citizenship or immigration
status” in response to a state request. JUSTICE BREYER is
concerned that this information “says nothing about work
authorization.” Post, at 9 (dissenting opinion). JUSTICE
SOTOMAYOR shares that concern. Post, at 10 (dissenting
opinion). But if a §1373(c) inquiry reveals that someone is
a United States citizen, that certainly answers the ques
tion whether that individual is authorized to work. The
same would be true if the response to a §1373(c) query
disclosed that the individual was a lawful permanent
resident alien or, on the other hand, had been ordered
removed. In any event, if the information provided under
§1373(c) does not confirm that an employee is an unau
thorized alien, then the State cannot prove its case. See
Brief for Respondents 50, n. 10 (“if the information from
the federal authorities does not establish that a person is
an unauthorized alien, it means that the county attorney
cannot satisfy his burden of proof in an enforcement
action”); Tr. of Oral Arg. 47.
From this basic starting point, the Arizona law contin
ues to trace the federal law. Both the state and federal
law prohibit “knowingly” employing an unauthorized
alien. Compare 8 U. S. C. §1324a(a)(1)(A) with Ariz. Rev.
Stat. Ann. §23–212(A).8 But the state law does not stop
there in guarding against any conflict with the federal
law. The Arizona law provides that “ ‘[k]nowingly employ
an unauthorized alien’ means the actions described in 8
——————
an employer a chance to show that it did not break the state law
certainly does not place the Arizona regime in conflict with federal law.
8 State law also prohibits “intentionally” employing an unauthorized
alien, §23–212.01(A), a more severe violation of the law. The Chamber
does not suggest that this prohibition is any more problematic than the
prohibition on “knowingly” employing an unauthorized alien.
18 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion R the Court
United States Code §1324a,” and that the “term shall
be interpreted consistently with 8 United States Code
§1324a and any applicable federal rules and regulations.”
§23–211(8).
The Arizona law provides employers with the same af
firmative defense for good-faith compliance with the I–9
process as does the federal law. Compare 8 U. S. C.
§1324a(a)(3) (“A person or entity that establishes that it
has complied in good faith with the [employment verifica
tion] requirements of [§1324a(b)] with respect to hiring . . .
an alien . . . has established an affirmative defense that
the person or entity has not violated” the law) with Ariz.
Rev. Stat. Ann. §23–212(J) (“an employer that establishes
that it has complied in good faith with the requirements
of 8 United States Code section 1324a(b) establishes an
affirmative defense that the employer did not knowingly
employ an unauthorized alien”).9 And both the federal
and Arizona law accord employers a rebuttable presump
tion of compliance with the law when they use E-Verify to
validate a finding of employment eligibility. Compare
IIRIRA §402(b), 110 Stat. 3009–656 to 3009–657 with
Ariz. Rev. Stat. Ann. §23–212(I).
Apart from the mechanics of the Arizona law, the Cham
ber argues more generally that the law is preempted
because it upsets the balance that Congress sought to
strike when enacting IRCA. In the Chamber’s view, IRCA
——————
9 The Chamber contends that the Arizona law conflicts with federal
law because IRCA prohibits the use of the I–9 form and “any informa
tion contained in or appended to [it]” from being “used for purposes
other than for enforcement of” IRCA and other specified federal laws. 8
U. S. C. §1324a(b)(5). That argument mistakenly assumes that an
employer would need to use the I–9 form or its supporting documents
themselves to receive the benefit of the affirmative defense in Arizona
court. In fact, “[a]n employer [could] establish good faith compliance
with [the] I–9 process[] . . . through testimony of employees and de
scriptions of office policy.” Brief for Respondents 52; see Tr. of Oral
Arg. 33.
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Opinion R the Court
reflects Congress’s careful balancing of several policy
considerations—deterring unauthorized alien employ
ment, avoiding burdens on employers, protecting employee
privacy, and guarding against employment discrimination.
According to the Chamber, the harshness of Arizona’s law
“ ‘exert[s] an extraneous pull on the scheme established by
Congress’ ” that impermissibly upsets that balance. Brief
for Petitioners 45 (quoting Buckman Co. v. Plaintiffs’
Legal Comm., 531 U. S. 341, 353 (2001)); see Brief for
Petitioners 42–45; Reply Brief for Petitioners 20.
As an initial matter, the cases on which the Chamber
relies in advancing this argument all involve uniquely
federal areas of regulation. See American Ins. Assn. v.
Garamendi, 539 U. S. 396, 401, 405–406 (2003) (presiden
tial conduct of foreign policy); Crosby v. National Foreign
Trade Council, 530 U. S. 363, 373–374 (2000) (foreign
affairs power); Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U. S. 341, 352 (2001) (fraud on a federal agency);
United States v. Locke, 529 U. S. 89, 97, 99 (2000) (regula
tion of maritime vessels); Bonito Boats, Inc. v. Thunder
Craft Boats, Inc., 489 U. S. 141, 143–144 (1989) (patent
law). Regulating in-state businesses through licensing
laws has never been considered such an area of dominant
federal concern.
Furthermore, those cases all concern state actions that
directly interfered with the operation of the federal pro
gram. In Buckman, for example, the Court determined
that allowing a state tort action would cause applicants
before a federal agency “to submit a deluge of information
that the [agency] neither wants nor needs, resulting in
additional burdens on the [agency’s] evaluation of an
application,” and harmful delays in the agency process.
531 U. S., at 351. In Garamendi, a state law imposing
sanctions on insurance companies directly “thwart[ed] the
[Federal] Government’s policy of repose” for insurance
companies that participated in an international program
20 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion R the Court
negotiated by the President. 539 U. S., at 425. Crosby
involved a state law imposing sanctions on any entity do
ing business with Burma, a law that left the President
with “less to offer and less economic and diplomatic lever
age” in exercising his foreign affairs powers. 530 U. S., at
377. The state law in Bonito Boats extended patent-like
protection “for subject matter for which patent protection
has been denied or has expired,” “thus eroding the general
rule of free competition upon which the attractiveness of
the federal patent bargain depends.” 489 U. S., at 159,
161. And the portions of Locke on which the Chamber
relies involved state efforts “to impose additional unique
substantive regulation on the at-sea conduct of vessels”—
“an area where the federal interest has been manifest
since the beginning of our Republic.” 529 U. S., at 106, 99.
There is no similar interference with the federal program
in this case; that program operates unimpeded by the
state law.
License suspension and revocation are significant sanc
tions. But they are typical attributes of a licensing re
gime. Numerous Arizona laws provide for the suspension
or revocation of licenses for failing to comply with specified
state laws. See, e.g., Ariz. Rev. Stat. Ann. §§5–108.05(D),
32–852.01(L), 32–1154(B), 32–1451(M), 41–2186 (West
2002). Federal law recognizes that the authority to license
includes the authority to suspend, revoke, annul, or with
draw a license. See 5 U. S. C. §551(9). Indeed, AWPA
itself—on which the Chamber so heavily relies—provides
that AWPA “certificates of registration” can be suspended
or revoked for employing an unauthorized alien. 29
U. S. C. §1813(a)(6). It makes little sense to preserve state
authority to impose sanctions through licensing, but not
allow States to revoke licenses when appropriate as one of
those sanctions.
The Chamber and JUSTICE BREYER assert that employ
ers will err on the side of discrimination rather than risk
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Opinion R the Court
the “ ‘business death penalty’ ” by “hiring unauthorized
workers.” Post, at 6–7 (dissenting opinion); see Brief for
Petitioners 3, 35. That is not the choice. License termina
tion is not an available sanction simply for “hiring unau
thorized workers.” Only far more egregious violations of
the law trigger that consequence. The Arizona law covers
only knowing or intentional violations. The law’s perma
nent licensing sanctions do not come into play until a
second knowing or intentional violation at the same busi
ness location, and only if the second violation occurs while
the employer is still on probation for the first. These
limits ensure that licensing sanctions are imposed only
when an employer’s conduct fully justifies them. An
employer acting in good faith need have no fear of the
sanctions.
As the Chamber points out, IRCA has its own anti
discrimination provisions, see 8 U. S. C. §1324b(a)(1),
(g)(1)(B) (imposing sanctions for discrimination “against
any individual . . . with respect to the hiring . . . or the
discharging of the individual from employment”); Arizona
law certainly does nothing to displace those. Other federal
laws, and Arizona anti-discrimination laws, provide fur
ther protection against employment discrimination—and
strong incentive for employers not to discriminate. See,
e.g., 42 U. S. C. §2000e–2(a) (prohibiting discrimination
based on “race, color, religion, sex, or national origin”);
Ariz. Rev. Stat. Ann. §41–1463(B)(1) (West Supp. 2010)
(prohibiting employment discrimination based on “race,
color, religion, sex, age, or national origin”).
All that is required to avoid sanctions under the Legal
Arizona Workers Act is to refrain from knowingly or inten
tionally violating the employment law. Employers enjoy
safe harbors from liability when they use the I–9 system
and E-Verify—as Arizona law requires them to do. The
most rational path for employers is to obey the law—both
the law barring the employment of unauthorized aliens
22 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion R the Court
and the law prohibiting discrimination—and there is no
reason to suppose that Arizona employers will choose not
to do so.
As with any piece of legislation, Congress did indeed
seek to strike a balance among a variety of interests when
it enacted IRCA. Part of that balance, however, involved
allocating authority between the Federal Government and
the States. The principle that Congress adopted in doing
so was not that the Federal Government can impose large
sanctions, and the States only small ones. IRCA instead
preserved state authority over a particular category of
sanctions—those imposed “through licensing and similar
laws.”
Of course Arizona hopes that its law will result in more
effective enforcement of the prohibition on employing
unauthorized aliens. But in preserving to the States the
authority to impose sanctions through licensing laws,
Congress did not intend to preserve only those state laws
that would have no effect. The balancing process that
culminated in IRCA resulted in a ban on hiring unauthor
ized aliens, and the state law here simply seeks to enforce
that ban.
Implied preemption analysis does not justify a “free
wheeling judicial inquiry into whether a state statute is in
tension with federal objectives”; such an endeavor “would
undercut the principle that it is Congress rather than the
courts that preempts state law.” Gade v. National Solid
Wastes Management Assn., 505 U. S. 88, 111 (1992)
(KENNEDY, J., concurring in part and concurring in judg
ment); see Silkwood v. Kerr-McGee Corp., 464 U. S. 238,
256 (1984). Our precedents “establish that a high thresh
old must be met if a state law is to be pre-empted for
conflicting with the purposes of a federal Act.” Gade,
supra, at 110. That threshold is not met here.
Cite as: 563 U. S. ____ (2011)
23
Opinion of the Court
III
The Chamber also argues that Arizona’s requirement
that employers use the federal E-Verify system to deter
mine whether an employee is authorized to work is im
pliedly preempted. In the Chamber’s view, “Congress
wanted to develop a reliable and non-burdensome system
of work-authorization verification” that could serve as an
alternative to the I–9 procedures, and the “mandatory use
of E-Verify impedes that purpose.” 558 F. 3d, at 866.
A
We begin again with the relevant text. The provision of
IIRIRA setting up the program that includes E-Verify
contains no language circumscribing state action. It does,
however, constrain federal action: absent a prior violation
of federal law, “the Secretary of Homeland Security may
not require any person or other entity [outside of the
Federal Government] to participate in a pilot program”
such as E-Verify. IIRIRA §402(a), 110 Stat. 3009–656.
That provision limits what the Secretary of Homeland
Security may do—nothing more.
The Federal Government recently argued just that, and
approvingly referenced Arizona’s E-Verify law when doing
so. In 2008, an Executive Order mandated that executive
agencies require federal contractors to use E-Verify as a
condition of receiving a federal contract. See Exec. Order
No. 13465, 73 Fed. Reg. 33286 (2008). When that Order
and its implementing regulation were challenged, the
Government pointed to Arizona’s E-Verify mandate as an
example of a permissible use of that system: “[T]he State
of Arizona has required all public and private employers
in that State to use E-Verify . . . . This is permissible
because the State of Arizona is not the Secretary of Home
land Security.” Defendants’ Reply Memorandum in Sup
port of Their Motion for Summary Judgment in No. 8:08–
cv–03444 (D Md.), p. 7 (emphasis added), appeal dism’d,
24 CHAMBER OF COMMERCE OF UNITED STATES OF
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Opinion of ofOBERTS, C. J.
Opinion R the Court
No. 09–2006 (CA4, Dec. 14, 2009).
Arizona’s use of E-Verify does not conflict with the
federal scheme. The Arizona law requires that “every
employer, after hiring an employee, shall verify the em
ployment eligibility of the employee” through E-Verify.
Ariz. Rev. Stat. Ann. §23–214(A) (West Supp. 2010). That
requirement is entirely consistent with the federal law.
And the consequences of not using E-Verify under the
Arizona law are the same as the consequences of not using
the system under federal law. In both instances, the only
result is that the employer forfeits the otherwise available
rebuttable presumption that it complied with the law.
Compare IIRIRA §402(b)(1) with Ariz. Rev. Stat. Ann.
§23–212(I).10
B
Congress’s objective in authorizing the development of
E-Verify was to ensure reliability in employment author
ization verification, combat counterfeiting of identity
documents, and protect employee privacy. 8 U. S. C.
§1324a(d)(2). Arizona’s requirement that employers oper
ating within its borders use E-Verify in no way obstructs
achieving those aims.
In fact, the Federal Government has consistently ex
panded and encouraged the use of E-Verify. When E-
Verify was created in 1996, it was meant to last just four
years and it was made available in only six States.
IIRIRA §401(b) and (c)(1), 110 Stat. 3009–655 to 3009–
656. Congress since has acted to extend the E-Verify
program’s existence on four separate occasions, the most
recent of which ensures the program’s vitality through
——————
10 Arizona has since amended its statute to include other conse
quences, such as the loss of state-allocated economic development
incentives. See 2008 Ariz. Sess. Laws ch. 152. Because those provi
sions were not part of the statute when this suit was brought, they are
not before us and we do not address their interaction with federal law.
Cite as: 563 U. S. ____ (2011) 25
Opinion of ofOBERTS, C. J.
Opinion R the Court
2012.11 And in 2003 Congress directed the Secretary of
Homeland Security to make E-Verify available in all 50
States. 117 Stat. 1944; IIRIRA §401(c)(1), 110 Stat. 3009–
656. The Department of Homeland Security has even
used “billboard and radio advertisements . . . to encour-
age greater participation” in the E-Verify program. 534
F. Supp. 2d, at 1056.
The Chamber contends that “if the 49 other States
followed Arizona’s lead, the state-mandated drain on
federal resources would overwhelm the federal system and
render it completely ineffective, thereby defeating Con
gress’s primary objective in establishing E-Verify.” Brief
for Petitioners 50–51. Whatever the legal significance of
that argument, the United States does not agree with the
factual premise. According to the Department of Home
land Security, “the E-Verify system can accommodate the
increased use that the Arizona statute and existing simi
lar laws would create.” Brief for United States as Amicus
Curiae 34. And the United States notes that “[t]he gov
ernment continues to encourage more employers to par
ticipate” in E-Verify. Id., at 31.
The Chamber has reservations about E-Verify’s reliabil
ity, see Brief for Petitioners 49, n. 27, but again the United
States disagrees. The Federal Government reports that
“E-Verify’s successful track record . . . is borne out by
findings documenting the system’s accuracy and partici
pants’ satisfaction.” Brief for United States as Amicus
Curiae 31. Indeed, according to the Government, the
program is “the best means available to determine the
employment eligibility of new hires.” U. S. Dept. of Home
land Security, U. S. Citizenship and Immigration Services,
——————
11 See Basic Pilot Extension Act of 2001, §2, 115 Stat. 2407; Basic
Pilot Program Extension and Expansion Act of 2003, §2, 117 Stat. 1944;
Consolidated Security, Disaster Assistance, and Continuing Appropria
tions Act, 2009, Div. A, §143, 122 Stat. 3580; Department of Homeland
Security Appropriations Act of 2010, §547, 123 Stat. 2177.
26 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
Opinion of ofOBERTS, C. J.
Opinion R the Court
E-Verify User Manual for Employers 4 (Sept. 2010).12
* * *
IRCA expressly reserves to the States the authority to
impose sanctions on employers hiring unauthorized work
ers, through licensing and similar laws. In exercising that
authority, Arizona has taken the route least likely to
cause tension with federal law. It uses the Federal Gov
ernment’s own definition of “unauthorized alien,” it relies
solely on the Federal Government’s own determination of
who is an unauthorized alien, and it requires Arizona
employers to use the Federal Government’s own system
for checking employee status. If even this gives rise to
impermissible conflicts with federal law, then there really
is no way for the State to implement licensing sanctions,
contrary to the express terms of the savings clause.
Because Arizona’s unauthorized alien employment law
fits within the confines of IRCA’s savings clause and does
not conflict with federal immigration law, the judgment of
——————
12 JUSTICE BREYER shares the Chamber’s concern about E-Verify’s
accuracy. See post, at 8, 19. Statistics from Fiscal Year 2010, however,
indicate that of the 15,640,167 E-Verify cases submitted, 98.3% were
automatically confirmed as work authorized, 0.3% were confirmed as
work authorized after contesting and resolving an initial nonconfir
mation—an avenue available to all workers—and 1.43% were not
found work authorized. E-Verify Statistics and Reports, available at
http://www.uscis.gov/portal/site/uscis/menuitem/statistics (as visited
May 23, 2011, and available in the Clerk of Court’s case file). As
JUSTICE BREYER notes, the initial mismatches (the 0.3%) are frequently
due to “ ‘incorrectly spelled [names] in government databases or on
identification documents.’ ” Post, at 19. Such a hazard is of course not
unique to E-Verify. Moreover, JUSTICE BREYER’s statistical analysis
underlying his conclusion that E-Verify queries, at least initially,
wrongly “suggest[] that an individual [i]s not lawfully employable”
“18% of the time” needs to be understood for what it is. Post, at 8. If
E-Verify initially indicated that two individuals were not found work
authorized, and later revealed that one of those determinations was
incorrect, JUSTICE BREYER would be able to exclaim that the error rate
was 50%.
Cite as: 563 U. S. ____ (2011) 27
Opinion of ofOBERTS, C. J.
Opinion R the Court
the United States Court of Appeals for the Ninth Circuit is
affirmed.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 563 U. S. ____ (2011) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–115
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA, ET AL., PETITIONERS v. MICHAEL
B. WHITING ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 26, 2011]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
The federal Immigration Reform and Control Act of
1986 (Act or IRCA) pre-empts “any State or local law
imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ, or
recruit, or refer for a fee for employment, unauthorized
aliens.” 8 U. S. C. §1324a(h)(2). The state law before us,
the Legal Arizona Workers Act, imposes civil sanctions
upon those who employ unauthorized aliens. See Ariz.
Rev. Stat. Ann. §23–211 et seq. (West Supp. 2010). Thus
the state law falls within the federal Act’s general pre
emption rule and is pre-empted—unless it also falls within
that rule’s exception for “licensing and similar laws.”
Unlike the Court, I do not believe the state law falls
within this exception, and I consequently would hold it
pre-empted.
Arizona calls its state statute a “licensing law,” and the
statute uses the word “licensing.” But the statute strays
beyond the bounds of the federal licensing exception, for
it defines “license” to include articles of incorporation and
partnership certificates, indeed virtually every state-law
authorization for any firm, corporation, or partnership to
do business in the State. §23–211(9)(a); cf. §23–211(9)(c)
2 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
(excepting professional licenses, and water and environ
mental permits). Congress did not intend its “licensing”
language to create so broad an exemption, for doing so
would permit States to eviscerate the federal Act’s pre
emption provision, indeed to subvert the Act itself, by
undermining Congress’ efforts (1) to protect lawful work
ers from national-origin-based discrimination and (2) to
protect lawful employers against erroneous prosecution or
punishment.
Dictionary definitions of the word “licensing” are, as the
majority points out, broad enough to include virtually any
permission that the State chooses to call a “license.” See
ante, at 10 (relying on a dictionary and the federal Admin
istrative Procedure Act). But neither dictionary defini
tions nor the use of the word “license” in an unrelated
statute can demonstrate what scope Congress intended
the word “licensing” to have as it used that word in this
federal statute. Instead, statutory context must ultimately
determine the word’s coverage. Context tells a driver that
he cannot produce a partnership certificate when a po
liceman stops the car and asks for a license. Context tells
all of us that “licensing” as used in the Act does not in
clude marriage licenses or the licensing of domestic ani
mals. And context, which includes statutory purposes,
language, and history, tells us that the federal statute’s
“licensing” language does not embrace Arizona’s overly
broad definition of that term. That is to say, ordinary
corporate charters, certificates of partnership, and the like
do not fall within the scope of the word “licensing” as used
in this federal exception. See Dolan v. Postal Service, 546
U. S. 481, 486 (2006) (statutory interpretation requires
courts to “rea[d] the whole statutory text, conside[r] the
purpose and context of the statute, and consul[t] any
precedents or authorities that inform the analysis”);
United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849)
(similar).
Cite as: 563 U. S. ____ (2011)
3
BREYER, J., dissenting
I
To understand how the majority’s interpretation of the
word “licensing” subverts the Act, one must understand
the basic purposes of the pre-emption provision and of the
Act itself. Ordinarily, an express pre-emption provision
in a federal statute indicates a particular congressional
interest in preventing States from enacting laws that
might interfere with Congress’ statutory objectives. See
International Paper Co. v. Ouellette, 479 U. S. 481, 494
(1987). The majority’s reading of the provision’s “licens
ing” exception, however, does the opposite. It facilitates
the creation of “ ‘obstacle[s] to the accomplishment and
execution of the full purposes and objectives of Congress.’ ”
Crosby v. National Foreign Trade Council, 530 U. S. 363,
373 (2000) (quoting Hines v. Davidowitz, 312 U. S. 52, 67
(1941)).
A
Essentially, the federal Act requires employers to verify
the work eligibility of their employees. And in doing so,
the Act balances three competing goals. First, it seeks to
discourage American employers from hiring aliens not
authorized to work in the United States. H. R. Rep. No.
99–682, pt. 1, p. 56 (1986).
Second, Congress wished to avoid “placing an undue
burden on employers,” id., at 90, and the Act seeks to
prevent the “harassment” of “innocent employers,” S. Rep.
No. 99–132, p. 35 (1985).
Third, the Act seeks to prevent employers from disfavor
ing job applicants who appear foreign. Reiterating long
standing antidiscrimination concerns, the House Commit
tee Report explained:
“Numerous witnesses . . . have expressed their deep
concern that the imposition of employer sanctions will
cause extensive employment discrimination against
Hispanic-Americans and other minority group mem
4 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
bers. These witnesses are genuinely concerned that
employers, faced with the possibility of civil and
criminal penalties, will be extremely reluctant to hire
persons because of their linguistic or physical charac
teristics.” H. R. Rep. No. 99–682, at 68.
See also 42 U. S. C. §2000e–2(a)(1) (making it an “unlaw
ful employment practice” for an employer to discriminate
against an individual “because of such individual’s race,
color, religion, sex, or national origin”); U. S. Commission
on Civil Rights, The Tarnished Golden Door: Civil Rights
Issues in Immigration 74 (1980) (finding that “increased
employment discrimination against United States citizens
and legal residents who are racially and culturally iden
tifiable with major immigrant groups could be the un
intended result of an employer sanctions law”). The
Committee concluded that “every effort must be taken to
minimize the potentiality of discrimination.” H. R. Rep.
No. 99–682, at 68.
B
The Act reconciles these competing objectives in several
ways:
First, the Act prohibits employers from hiring an alien
knowing that the alien is unauthorized to work in the
United States. 8 U. S. C. §1324a(a)(1)(A).
Second, the Act provides an easy-to-use mechanism that
will allow employers to determine legality: the I–9 form.
In completing an I–9 form, the employer certifies that he
or she has examined one or two documents (e.g., a pass
port, or a driver’s license along with a Social Security
card) that tend to confirm the worker’s identity and em
ployability. §1324a(b)(1). Completion of the form in good
faith immunizes the employer from liability, even if the
worker turns out to be unauthorized. §§1324a(a)(3),
1324a(b)(6).
A later amendment to the law also allows an employer
Cite as: 563 U. S. ____ (2011) 5
BREYER, J., dissenting
to verify an employee’s work eligibility through an
Internet-based federal system called E-Verify. If the em
ployer does so, he or she will receive the benefit of a rebut
table presumption of compliance. Illegal Immigration Re
form and Immigrant Responsibility Act of 1996 (IIRIRA),
§402(b), 110 Stat. 3009–656 to 3009–657, note following 8
U. S. C. §1324a, p. 331 (Pilot Programs for Employment
Eligibility Confirmation).
Third, the Act creates a central enforcement mecha
nism. The Act directs the Attorney General to establish a
single set of procedures for receiving complaints, investi
gating those complaints that “have a substantial proba
bility of validity,” and prosecuting violations. 8 U. S. C.
§1324a(e)(1). The relevant immigration officials and
administrative law judges have the power to access neces
sary evidence and witnesses, §1324a(e)(2), and the em
ployer has the right to seek discovery from the Federal
Government, 28 CFR §68.18 (2010). The employer also
has the right to administrative and judicial review of the
administrative law judge’s decision. §§68.54, 68.56.
Fourth, the Act makes it “an unfair immigration-related
employment practice . . . to discriminate against any
individual” in respect to employment “because of such
individual’s national origin.” 8 U. S. C. §1324b(a).
Fifth, the Act sets forth a carefully calibrated sanction
system. The penalties for hiring unauthorized aliens are
graduated to prevent the Act from unduly burdening
employers who are not serious offenders. As adjusted for
inflation, civil penalties for a first violation of the employ
ment restrictions range from $375–$3,200 per worker,
and rise to $3,200–$16,000 per worker for repeat offend
ers. §1324a(e)(4)(A); 73 Fed. Reg. 10133 (2008); see also
§1324a(f) (imposing criminal fines of not more than $3,000
per worker and imprisonment for up to six months for
“pattern or practice” violators of employment restrictions).
As importantly, the Act limits or removes any incentive
6 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
to discriminate on the basis of national origin by setting
antidiscrimination fines at equivalent levels: $375–$3,200
per worker for first-time offenders, and $3,200–$16,000
per worker for repeat offenders. §1324b(g)(2)(B)(iv); 73
Fed. Reg. 10134. The Act then ties its unlawful employ
ment and antidiscrimination provisions together by pro
viding that, should the antihiring provisions terminate,
the antidiscrimination provisions will also terminate,
§1324b(k), “the justification for them having been re
moved,” H. R. Conf. Rep. No. 99–1000, p. 87 (1986).
C
Now, compare and contrast Arizona’s statute. As I have
said, that statute applies to virtually all business-related
licenses, other than professional licenses. Ariz. Rev. Stat.
Ann. §23–211(9). Like the federal Act, the state law for
bids the employment of unauthorized aliens. §§23–212(A),
23–212.01(A). It also provides employers with somewhat
similar defenses. §§23–212(I)–(J), 23–212.01(I)–(J). But
thereafter the state and federal laws part company.
First, the state statute seriously threatens the federal
Act’s antidiscriminatory objectives by radically skewing
the relevant penalties. For example, in the absence of the
Arizona statute, an Arizona employer who intentionally
hires an unauthorized alien for the second time would risk
a maximum penalty of $6,500. 8 U. S. C. §1324a(e)(4)
(A)(ii); 73 Fed. Reg. 10133. But the Arizona statute sub
jects that same employer (in respect to the same two
incidents) to mandatory, permanent loss of the right to do
business in Arizona–a penalty that Arizona’s Governor
has called the “business death penalty.” Ariz. Rev. Stat.
Ann. §23–212.01(F)(2); News Release, Governor Signs
Employer Sanctions Bill (2007), App. 399. At the same
time, the state law leaves the other side of the punishment
balance—the antidiscrimination side—unchanged.
This is no idle concern. Despite the federal Act’s efforts
Cite as: 563 U. S. ____ (2011) 7
BREYER, J., dissenting
to prevent discriminatory practices, there is evidence that
four years after it had become law, discrimination was a
serious problem. In 1990, the General Accounting Office
identified “widespread discrimination . . . as a result of”
the Act. Report to the Congress, Immigration Reform:
Employer Sanctions and the Question of Discrimination 3,
37, 80. Sixteen percent of employers in Los Angeles ad
mitted that they applied the I–9 requirement “only to
foreign-looking or foreign-sounding persons,” and 22 per
cent of Texas employers reported that they “began a prac
tice to (1) hire only persons born in the United States or
(2) not hire persons with temporary work eligibility docu
ments” because of the Act. Id., at 41–43. If even the
federal Act (with its carefully balanced penalties) can
result in some employers discriminating, how will employ
ers behave when erring on the side of discrimination leads
only to relatively small fines, while erring on the side of
hiring unauthorized workers leads to the “business death
penalty”?
Second, Arizona’s law subjects lawful employers to in
creased burdens and risks of erroneous prosecution. In
addition to the Arizona law’s severely burdensome sanc
tions, the law’s procedures create enforcement risks not
present in the federal system. The federal Act creates one
centralized enforcement scheme, run by officials versed in
immigration law and with access to the relevant federal
documents. The upshot is an increased likelihood that
federal officials (or the employer) will discover whether
adverse information flows from an error-prone source and
that they will proceed accordingly, thereby diminishing
the likelihood that burdensome proceedings and liability
reflect documentary mistakes.
Contrast the enforcement system that Arizona’s statute
creates. Any citizen of the State can complain (anony
mously or otherwise) to the state attorney general (or any
county attorney), who then “shall investigate,” Ariz. Rev.
8 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
Stat. Ann. §23–212(B) (emphasis added), and, upon a
determination that that the “complaint is not false and
frivolous . . . shall notify the appropriate county attorney
to bring an action,” §23–212(C)(3). This mandatory lan
guage, the lower standard (“not frivolous” instead of
“substantial”), and the removal of immigration officials
from the state screening process (substituting numerous,
elected county attorneys) increase the likelihood that
suspicious circumstances will lead to prosecutions and
liability of employers—even where more careful investiga
tion would have revealed that there was no violation.
Again, this matter is far from trivial. Studies of one
important source of Government information—the E-
Verify system—describe how the federal administrative
process corrected that system’s tentative “unemployable”
indications 18% of the time. This substantial error rate is
not a function of a small sample size. See ante, at 26, n.
12. Rather, data from one fiscal year showed 46,921
workers initially rejected but later “confirmed as work
authorized”—all while E-Verify was used by only a frac
tion of the Nation’s employers. U. S. Citizenship and
Immigration Services, Statistics and Reports, http://
www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9a
c89243c6a7543f6d1a/?vgnextchannel=7c579589cdb76210V
gnVCM100000b92ca60aRCRD (Feb. 4, 2011) (as visited
May 18, 2011, and available in Clerk of Court’s case file).
That is to say nearly one-in-five times that the E-Verify
system suggested that an individual was not lawfully
employable (i.e., returned a tentative nonconfirmation of
work authorization), the system was wrong; and subse
quent review in the federal administrative process deter
mined as much. (And those wrongly identified were likely
to be persons of foreign, rather than domestic, origin, by a
ratio of approximately 20 to 1.) See Westat, Findings of
the E-Verify Program Evaluation xxxi, 210, 246 (Dec.
2009) (assessing data from April to June 2008). E-Verify’s
Cite as: 563 U. S. ____ (2011) 9
BREYER, J., dissenting
accuracy rate is even worse “in states that require the use
of E-Verify for all or some of their employees.” Id., at 122.
A related provision of the state law aggravates the risk
of erroneous prosecutions. The state statute says that
in “determining whether an employee is an unauthorized
alien, the court shall consider only the federal govern
ment’s determination pursuant to 8 [U. S. C.] §1373(c).”
Ariz. Rev. Stat. Ann. §23–212(H). But the federal provi
sion to which the state law refers, 8 U. S. C. §1373(c), says
only that the Federal Government, upon a State’s request,
shall verify a person’s “citizenship or immigration status.”
It says nothing about work authorization. See post, at 7–
10 (SOTOMAYOR, J., dissenting). It says nothing about the
source of the Federal Government’s information. It im
poses no duty upon the Federal Government or anyone
else to investigate the validity of that information, which
may falsely implicate an employer 18% of the time.
So what is the employer to do? What statute gives an
employer whom the State proceeds against in state court
the right to conduct discovery against the Federal Gov
ernment? The Arizona statute, like the federal statute,
says that the employer’s use of an I–9 form provides a
defense. But there is a hitch. The federal Act says that
neither the I–9 form, nor “any information contained
in or appended to” the form, “may . . . be used for pur
poses other than for enforcement of this” federal Act.
§1324a(b)(5). So how can the employer present a defense,
say, that the Government’s information base is flawed?
The majority takes the view that the forms are not neces­
sary to receive the benefit of the affirmative defense. Ante,
at 18, n. 9. But the I–9 form would surely be the em
ployer’s most effective evidence. See also post, at 11
(SOTOMAYOR, J., dissenting) (suggesting that the unavail
ability of I–9 forms to defend against state-court charges
means that Congress “intended no such” proceedings).
Nor does the Arizona statute facilitate the presentation
10 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
of a defense when it immediately follows (1) its statement
that “the court shall consider only the federal govern
ment’s determination” when it considers “whether an
employee is an unauthorized alien” with (2) its statement
that “[t]he federal government’s determination creates a
rebuttable presumption of the employee’s lawful status.”
Ariz. Rev. Stat. Ann. §23–212(H) (emphasis added). The
two statements sound as if they mean that a Federal
Government determination that the worker is unlawful
is conclusive against the employer, but its determination
that the worker’s employment is lawful is subject to rebut
tal by the State. Arizona tells us that the statute means
the opposite. See ante, at 16, n. 7. But the legal briefs of
Arizona’s attorney general do not bind the state courts.
And until the matter is cleared up, employers, despite I–9
checks, despite efforts to use E-Verify, will hesitate to hire
those they fear will turn out to lack the right to work in
the United States.
And that is my basic point. Either directly or through
the uncertainty that it creates, the Arizona statute will
impose additional burdens upon lawful employers and
consequently lead those employers to erect ever stronger
safeguards against the hiring of unauthorized aliens—
without counterbalancing protection against unlawful
discrimination. And by defining “licensing” so broadly, by
bringing nearly all businesses within its scope, Arizona’s
statute creates these effects statewide.
Why would Congress, after deliberately limiting ordi
nary penalties to the range of a few thousand dollars per
illegal worker, want to permit far more drastic state pen
alties that would directly and mandatorily destroy entire
businesses? Why would Congress, after carefully balanc
ing sanctions to avoid encouraging discrimination, want to
allow States to destroy that balance? Why would Con
gress, after creating detailed procedural protections for
employers, want to allow States to undermine them? Why
Cite as: 563 U. S. ____ (2011) 11
BREYER, J., dissenting
would Congress want to write into an express pre-emption
provision—a provision designed to prevent States from
undercutting federal statutory objectives—an exception
that could so easily destabilize its efforts? The answer to
these questions is that Congress would not have wanted to
do any of these things. And that fact indicates that the
majority’s reading of the licensing exception—a reading
that would allow what Congress sought to forbid—is
wrong.
II
The federal licensing exception cannot apply to a state
statute that, like Arizona’s statute, seeks to bring virtually
all articles of incorporation and partnership certificates
within its scope. I would find the scope of the exception
to federal pre-emption to be far more limited. Context,
purpose, and history make clear that the “licensing and
similar laws” at issue involve employment-related licensing
systems.
The issuance of articles of incorporation and partnership
certificates and the like have long had little or nothing to
do with hiring or “employment.” Indeed, Arizona provides
no evidence that any State, at the time the federal Act was
enacted, had refused to grant or had revoked, say, part
nership certificates, in light of the partners’ hiring prac
tices of any kind, much less the hiring of unauthorized
aliens. See Ariz. Rev. Stat. Ann. §29–308 (limited part
nership formed upon the filing of a certificate of partner
ship providing names and addresses); §29–345 (providing
for dissolution of a limited partnership “[o]n application by
or for a partner or assignee . . . whenever it is not rea
sonably practicable to carry on the business in conformity
with the partnership agreement”).
To read the exception as covering laws governing corpo
rate charters and partnership certificates (which are not
usually called “licensing” laws) is to permit States to turn
12 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
virtually every permission-related state law into an
employment-related “licensing” law. The State need only
call the permission a “license” and revoke the license should
its holder hire an unauthorized alien. If what was not
previously an employment-related licensing law can be
come one simply by using it as a sanction for hiring unau
thorized aliens or simply by state definition, indeed, if the
State can call a corporate charter an employment-related
licensing law, then why not an auto licensing law
(amended to revoke the driver’s licenses of those who hire
unauthorized aliens)? Why not a dog licensing law? Or
why not “impute” a newly required license to conduct any
business to every human being in the State, withdrawing
that license should that individual hire an unauthorized
alien? See S. C. Code Ann. §41–8–20 (Supp. 2010) (provid
ing that “[a]ll private employers in South Carolina . . .
shall be imputed a South Carolina employment license,
which permits a private employer to employ a person in
this State,” but conditioning the license on the company’s
not hiring unauthorized aliens).
Such laws might prove more effective in stopping the
hiring of unauthorized aliens. But they are unlikely to do
so consistent with Congress’ other critically important
goals, in particular, Congress’ efforts to protect from dis
crimination legal workers who look or sound foreign. That
is why we should read the federal exemption’s “licensing”
laws as limited to those that involve the kind of licensing
that, in the absence of this general state statute, would
nonetheless have some significant relation to employment
or hiring practices. Otherwise we read the federal “licens
ing” exception as authorizing a State to undermine, if not
to swallow up, the federal pre-emption rule.
III
I would therefore read the words “licensing and similar
laws” as covering state licensing systems applicable pri
Cite as: 563 U. S. ____ (2011) 13
BREYER, J., dissenting
marily to the licensing of firms in the business of recruit
ing or referring workers for employment, such as the state
agricultural labor contractor licensing schemes in exis
tence when the federal Act was created. This reading is
consistent with the provision’s history and language, and
it minimizes the risk of harm of the kind just described.
The Act’s history supports this interpretation. Ever
since 1964, the Federal Government has administered
statutes that create a federal licensing scheme for agricul
tural labor contractors, firms that specialize in recruiting
agricultural workers and referring them to farmers for a
fee. Farm Labor Contractor Registration Act of 1963
(FLCRA), 78 Stat. 920; Migrant and Seasonal Agricultural
Worker Protection Act (AWPA), 96 Stat. 2583. The stat
utes require agricultural labor contractors to register with
the federal Secretary of Labor, to obtain a registration
certificate (in effect a license), and to require the contrac
tor’s employees to carry that certificate with them when
engaging in agricultural labor contracting activities.
AWPA §101; FLCRA §4. The statutes list a host of forbid
den activities, one of which (prior to 1986) was hiring
unauthorized aliens. See AWPA §§103, 106; FLCRA §5(b).
Prior to 1986, if the federal Labor Department believed
a firm had violated these substantive provisions, it could
institute administrative proceedings within the Labor
Department. And if the Secretary found the labor con
tracting firm had violated the provisions, the Secretary
could impose monetary penalties or withdraw the firm’s
registration. AWPA §§103, 503; FLCRA §§5(b), 9.
Most important, and unlike the 1986 Act before us, the
earlier agricultural labor contracting statutes did not pre­
empt similar state laws. To the contrary, the earlier Acts
were “intended to supplement State law” and did not
“excuse any person from compliance with appropriate
State law and regulation.” AWPA §521; see FLCRA §12.
By 1986, nearly a dozen States had developed state licens
14 CHAMBER OF COMMERCE OF UNITED STATES OF
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BREYER, J., dissenting
ing systems for agricultural labor contractors, i.e., firms
that recruited and referred farm (and sometimes forestry)
workers for a fee; some of these laws provided that state
licenses could be revoked if the contractors hired unau
thorized aliens. See, e.g., Cal. Lab. Code §1690(f) (Deering
Supp. 1991); 43 Pa. Cons. Stat. §§1301.503(4), 1301.505(3)
(1965–1983 Supp. Pamphlet); Ore. Rev. Stat. §§658.405(1),
658.440(2)(d) (1987) (covering forestry workers).
In 1986, Congress (when enacting the Act now before
us) focused directly upon the earlier federal agricultural
labor contractor licensing system. And it changed that
earlier system by including a series of conforming
amendments in the Act. One amendment removes from
the earlier statutes the specific prohibition against hiring
unauthorized aliens. It thereby makes agricultural labor
contractors subject to the Act’s similar general prohibition
against such hiring. IRCA §101(b)(1)(C) (repealing AWPA
§106). Another amendment takes from the Secretary of
Labor most of the Secretary’s enforcement powers in
respect to the hiring of unauthorized aliens. It thereby
leaves agricultural labor contractors subject to the same
single unified enforcement system that the immigration
Act applies to all employers. See 29 U. S. C. §1853. A
third amendment, however, leaves with the Secretary of
Labor the power to withdraw the federal registration
certificate from an agricultural labor contractor that hired
unauthorized aliens. IRCA §101(b)(1)(B)(iii), 29 U. S. C.
§1813(a)(6). Thus, the Act leaves this subset of employers
(i.e., agricultural labor contractors but not other employ
ers) subject to a federal licensing scheme.
So far, the conforming amendments make sense. But
have they not omitted an important matter? Prior to
1986, States as well as the Federal Government could
license agricultural labor contractors. Should the 1986
statute not say whether Congress intended that dual
system to continue? The answer is that the 1986 Act does
Cite as: 563 U. S. ____ (2011) 15
BREYER, J., dissenting
not omit this matter. It answers the coexistence question
directly with the parenthetical phrase we are now consid
ering, namely, the phrase, “other than through licensing
and similar laws,” placed in the middle of the Act’s pre
emption provision. 8 U. S. C. §1324a(h)(2). That phrase
refers to agricultural labor contractors, and it says that,
in respect to those licensing schemes, dual state/federal
licensing can continue.
As of 1986, there were strong reasons for permitting
that dual system to continue in this specialized area. Dual
enforcement had proved helpful in preventing particularly
serious employment abuses. See, e.g., 128 Cong. Rec.
24090 (1982) (reflecting concerns that agricultural work
ers were “housed in hovels; . . . subjected to physical abuse
and kept in virtual slavery”). And because the contractors’
business consists of providing labor forces, their hiring of
authorized workers is closely related to their general
fitness to do business. See S. Rep. No. 202, 88th Cong.,
1st Sess., 1 (1963) (explaining that farm labor contractor
registration laws are needed to prevent “irresponsible
crew leaders” from “exploit[ing] . . . farmers”); Martin,
Good Intentions Gone Awry: IRCA and U. S. Agriculture,
534 Annals Am. Acad. Pol. & Soc. Sci. 44, 49 (1994) (de
scribing how farmers who relied on contractors risked
losing their labor forces to immigration raids). Dual en
forcement would not create a federal/state penalty dispar
ity, for federal systems as well as state systems provide for
license revocation. Experience had shown that dual en
forcement had not created any serious conflict or other
difficulty. And in light of the specialized nature and com
paratively small set of businesses subject to dual enforce
ment, to permit licensing of that set of businesses would
not seriously undermine the objectives of the Act or its
pre-emption provision.
Thus, it is not surprising that the legislative history of
the 1986 Act’s pre-emption provision says that the licens
16 CHAMBER OF COMMERCE OF UNITED STATES OF
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BREYER, J., dissenting
ing exception is about the licensing of agricultural labor
contractors. The House Report on the Act, referring to the
licensing exception, states that the Committee did “not
intend to preempt licensing or ‘fitness to do business laws,’
such as state farm labor contractor laws or forestry laws,
which specifically require such licensee or contractor to
refrain from hiring, recruiting or referring undocumented
aliens.” H. R. Rep. No. 99–682, at 58 (emphasis added).
The Act’s language, while not requiring this interpreta
tion, is nonetheless consistent with limiting the scope of
the phrase in this way. Context can limit the application
of the term “licensing” to particular types of licensing. The
Act’s subject matter itself limits the term to employment
related licensing. And the Act’s specific reference to those
who “recruit or refer for a fee for employment, unauthor
ized aliens,” is consistent with employment-related li
censing that focuses primarily upon labor contracting
businesses.
Thus, reading the phrase as limited in scope to laws
licensing businesses that recruit or refer workers for
employment is consistent with the statute’s language,
with the relevant history, and with other statutory provi
sions in the Act. That reading prevents state law from
undermining the Act and from turning the pre-emption
clause on its head. That is why I consider it the better
reading of the statute.
IV
Another section of the Arizona statute requires “every
employer, after hiring an employee,” to “verify the em
ployment eligibility of the employee” through the Federal
Government’s E-Verify program. Ariz. Rev. Stat. Ann.
§23–214. This state provision makes participation in the
federal E-Verify system mandatory for virtually all Ari
zona employers. The federal law governing the E-Verify
program, however, creates a program that is voluntary.
Cite as: 563 U. S. ____ (2011) 17
BREYER, J., dissenting
By making mandatory that which federal law seeks to
make voluntary, the state provision stands as a significant
“ ‘obstacle to the accomplishment and execution of the full
purposes and objectives of Congress,’ ” Crosby, 530 U. S.,
at 373 (quoting Hines, 312 U. S., at 67). And it is conse
quently pre-empted.
The federal statute itself makes clear that participation
in the E-Verify program is voluntary. The statute’s rele
vant section bears the title “Voluntary Election to Partici
pate in a Pilot Program.” IIRIRA §402, note following 8
U. S. C. §1324a, p. 331. A subsection bears the further
title, “Voluntary Election.” §402(a). And within that
subsection, the statute says that employers “may elect to
participate.” (Emphasis added.) The statute elsewhere
requires the Secretary of Homeland Security to “widely
publicize . . . the voluntary nature” of the program.
§402(d)(2); see also §402(d)(3)(A) (requiring the designa
tion of local officials to advertise the “voluntary nature” of
the program). It adds that employers may “terminate”
their “election” to participate by following certain proce
dures. §402(c)(3). And it tells the Secretary of Homeland
Security (as an earlier version told the Attorney General)
that she “may not require any person or other entity to
participate.” §402(a); see also §402(e) (creating exceptions,
none of which is applicable here, that require federal
employers and certain others to participate in E-Verify or
another pilot program).
Congress had strong reasons for insisting on the volun
tary nature of the program. E-Verify was conceived as,
and remains, a pilot program. Its database consists of
tens of millions of Social Security and immigration records
kept by the Federal Government. These records are prone
to error. See, e.g., Office of the Inspector General, Social
Security Administration, Congressional Response Report:
Accuracy of the Social Security Administration’s Nu
mident File 12 (2006) (hereinafter Social Security Report)
18 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
BREYER, J., dissenting
(estimating that 3.3 million naturalized citizens are mis
classified in a Social Security database used by E-Verify);
GAO, Employment Verification: Federal Agencies Have
Taken Steps to Improve E-Verify, but Significant Chal
lenges Remain 16 (GAO–11–146, 2010) (hereinafter GAO
Report) (noting that “erroneous [nonconfirmations] related
to name inconsistencies . . . remain an issue” that “can
create the appearance of discrimination because of their
disparate impact on certain cultural groups”). And mak
ing the program mandatory would have been hugely ex
pensive. See post, at 16 (SOTOMAYOR, J., dissenting).
The E-Verify program is still a pilot program, as a mat
ter of statute and practice. See IIRIRA §401; Letter from
H. Couch to R. Stana (Dec. 8, 2010) (discussing aspects of
E-Verify that have yet to be implemented). The effects of
the program’s efforts to take account of, and correct for,
potential errors remain uncertain. Congress could decide
that, based on the results of the pilot, E-Verify should
become a mandatory program. But it has not yet made
that determination. And in making that decision, it will
have to face a number of questions: Will workers receiving
tentative negative verdicts understand the possibility of
administrative challenge? Will they make the effort to
invoke that process, say traveling from a farm to an urban
Social Security office? Will employers prove willing to
undergo the financial burden of supporting a worker who
might lose the challenge? Will employers hesitate to train
those workers during the time they bring their challenges?
Will employers simply hesitate to hire workers who might
receive an initial negative verdict—more likely those who
look or sound foreign? Or will they find ways to dismiss
those workers? These and other unanswered questions
convinced Congress to make E-Verify a pilot program, to
commission continuous study and evaluation, and to insist
that participation be voluntary.
In co-opting a federal program and changing the key
Cite as: 563 U. S. ____ (2011) 19
BREYER, J., dissenting
terms under which Congress created that program, Ari
zona’s mandatory state law simply ignores both the fed
eral language and the reasoning it reflects, thereby posing
an “ ‘obstacle to the accomplishment’ ” of the objectives
Congress’ statute evinces. Crosby, supra, at 373 (quoting
Hines, supra, at 67).
The majority reaches a contrary conclusion by pointing
out (1) that Congress has renewed the E-Verify program
several times, each time expanding its coverage, to the
point where it now encompasses all 50 States; (2) that the
E-Verify database has become more accurate; (3) that
the Executive Branch has itself mandated participation
for federal contractors; and (4) that the statute’s language
tells the Secretary of Homeland Security, not the States, to
maintain the program as voluntary.
The short, and, I believe, conclusive answers to these
objections are: (1) Congress has kept the language of the
statute—and the voluntary nature of the program—the
same throughout its program renewals. See 115 Stat.
2407; 117 Stat. 1944; §547, 123 Stat. 2177. And it is up to
Congress, not to Arizona or this Court, to decide when
participation in the program should cease to be voluntary.
(2) The studies and reports have repeatedly found both
(a) that the E-Verify program had achieved greater accu
racy, but (b) that problems remain. See, e.g., Social Secu
rity Report 11 (estimating that Social Security records
contain 4.8 million “discrepancies that could require the
numberholder to visit [the Social Security Administration]
. . . before employment eligibility would be confirmed”);
GAO Report 19 (estimating that, if E-Verify were made
mandatory nationwide, 164,000 newly hired workers each
year would erroneously be adjudged ineligible to work
because of name mismatches, as when the worker’s “first
or last name is incorrectly spelled in government data
bases or on identification documents”). And it is up to
Congress, not to Arizona or this Court, to determine when
20 CHAMBER OF COMMERCE OF UNITED STATES OF
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BREYER, J., dissenting
the federally designed and federally run E-Verify program
is ready for expansion.
(3) Federal contractors are a special group of employers,
subject to many special requirements, who enter voluntar
ily into a special relation with the Government. For the
Federal Government to mandate that a special group
participate in the E-Verify program tells us little or noth
ing about the effects of a State’s mandating that nearly
every employer within the State participate—as Arizona
has done. And insofar as we have not determined whether
the Executive was authorized by Congress to mandate E-
Verify for federal contractors, it says nothing about Con
gress’ intent.
(4) 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 presump
tion that a State may modify the operation of a uniquely
federal program like E-Verify. Cf. Buckman Co. v. Plain­
tiffs’ Legal Comm., 531 U. S. 341, 347–348 (2001); Boyle v.
United Technologies Corp., 487 U. S. 500, 504–505 (1988);
see also post, at 15–16 (SOTOMAYOR, J., dissenting). The
remaining federal statutory language makes clear the
voluntary nature of the E-Verify program. Arizona’s plan
would undermine that federal objective.
For these reasons I would hold that the federal Act,
including its E-Verify provisions, pre-empts Arizona’s
state law. With respect, I dissent from the majority’s
contrary holdings.
Cite as: 563 U. S. ____ (2011) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–115
_________________
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA, ET AL., PETITIONERS v. MICHAEL
B. WHITING ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 26, 2011]
JUSTICE SOTOMAYOR, dissenting.
In enacting the Immigration Reform and Control Act
of 1986 (IRCA), 100 Stat. 3359, Congress created a “com­
prehensive scheme prohibiting the employment of illegal
aliens in the United States.” Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U. S. 137, 147 (2002). The Court reads
IRCA’s saving clause—which preserves from pre-emption
state “licensing and similar laws,” 8 U. S. C.
§1324a(h)(2)—to permit States to determine for them­
selves whether someone has employed an unauthorized
alien so long as they do so in conjunction with licensing
sanctions. This reading of the saving clause cannot be
reconciled with the rest of IRCA’s comprehensive scheme.
Having constructed a federal mechanism for determining
whether someone has knowingly employed an unauthor­
ized alien, and having withheld from the States the infor­
mation necessary to make that determination, Congress
could not plausibly have intended for the saving clause to
operate in the way the majority reads it to do. When
viewed in context, the saving clause can only be under­
stood to preserve States’ authority to impose licensing
sanctions after a final federal determination that a person
has violated IRCA by knowingly employing an unauthor­
ized alien. Because the Legal Arizona Workers Act in­
2 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
stead creates a separate state mechanism for Arizona
state courts to determine whether a person has employed
an unauthorized alien, I would hold that it falls outside
the saving clause and is pre-empted.
I would also hold that federal law pre-empts the provi­
sion of the Arizona Act making mandatory the use of
E-Verify, the federal electronic verification system. By
requiring Arizona employers to use E-Verify, Arizona has
effectively made a decision for Congress regarding use of a
federal resource, in contravention of the significant policy
objectives motivating Congress’ decision to make partici­
pation in the E-Verify program voluntary.
I
A
I begin with the plain text of IRCA’s pre-emption clause.
IRCA expressly pre-empts States from “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.”1 Ibid. The
Arizona Act, all agree, imposes civil sanctions upon those
who employ unauthorized aliens. The Act thus escapes
express pre-emption only if it falls within IRCA’s paren­
thetical saving clause for “licensing and similar laws.”
Ibid.
The saving clause is hardly a paragon of textual clarity.
IRCA does not define “licensing,” nor does it use the word
“licensing” in any other provision. Laws that impose
sanctions by means of licensing exist in many forms.
Some permit authorities to take action with respect to
licenses upon finding that a licensee has engaged in pro­
——————
1 IRCA defines the term “unauthorized alien” to mean, “with respect
to the employment of an alien at a particular time, that the alien is not
at that time either (A) an alien lawfully admitted for permanent
residence, or (B) authorized to be so employed by this chapter or by the
Attorney General.” 8 U. S. C. §1324a(h)(3).
Cite as: 563 U. S. ____ (2011) 3
SOTOMAYOR, J., dissenting
hibited conduct. See, e.g., Ariz. Rev. Stat. Ann. §4–
210(A)(1) (West 2011) (liquor licenses may be suspended
or revoked if the licensing authority determines after
notice and a hearing that repeated acts of violence have
occurred on the licensed premises). Others, more nar­
rowly, permit authorities to take such action following a
pre-existing determination by another authorized body
that the licensee has violated another provision of law.
See, e.g., §4–202(D) (liquor licenses may not be renewed to
persons who have been convicted of felonies within the
past five years). That both types of laws might be defined
in some contexts as licensing laws does not necessarily
mean that Congress intended the saving clause to encom­
pass both types. See Dolan v. Postal Service, 546 U. S.
481, 486 (2006) (“A word in a statute may or may not
extend to the outer limits of its definitional possibilities”);
see also FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip
op., at 9) (“[C]onstruing statutory language is not merely
an exercise in ascertaining the outer limits of [a word’s]
definitional possibilities” (internal quotation marks omit­
ted; second alteration in original)). In isolation, the text of
IRCA’s saving clause provides no hint as to which type or
types of licensing laws Congress had in mind.
B
Because the plain text of the saving clause does not
resolve the question, it is necessary to look to the text
of IRCA as a whole to illuminate Congress’ intent. See
Dolan, 546 U. S., at 486 (“Interpretation of a word or
phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute”); Ali v.
Federal Bureau of Prisons, 552 U. S. 214, 222 (2008) (con­
struction of a statutory term “must, to the extent possible,
ensure that the statutory scheme is coherent and consis­
tent”); Davis v. Michigan Dept. of Treasury, 489 U. S. 803,
809 (1989) (“[St]tatutory language cannot be construed in
4 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
a vacuum. It is a fundamental canon of statutory con­
struction that the words of a statute must be read in their
context and with a view to their place in the overall statu­
tory scheme”).2
Before Congress enacted IRCA in 1986, a number of
States had enacted legislation prohibiting employment of
unauthorized aliens. See ante, at 2, and n. 1 (citing 12
such laws). California, for example, prohibited the know­
ing employment of an alien “who is not entitled to lawful
residence in the United States” when “such employment
would have an adverse effect on lawful resident workers,”
and made violations punishable by fines of $200 to $500.
1971 Cal. Stats. ch. 1442, §1; see also De Canas v. Bica,
424 U. S. 351, 352, n. 1 (1976). Kansas went even further,
making it a misdemeanor, punishable by a term of con­
finement not to exceed one month, to employ a person
within Kansas knowing “such person to be illegally within
the territory of the United States.” Kan. Stat. Ann. §§21–
4409, 21–4502 (1981).3
Congress enacted IRCA amidst this patchwork of state
laws. IRCA “ ‘forcefully’ made combating the employment
of illegal aliens central to ‘the policy of immigration law.’ ”
Hoffman, 535 U. S., at 147 (quoting INS v. National Cen
ter for Immigrants’ Rights, Inc., 502 U. S. 183, 194, and n.
8 (1991); brackets omitted); see also H. R. Rep. No. 99–
682, pt. 1, p. 46 (1986) (hereinafter H. R. Rep. No. 99–682)
——————
2 Asthese cases demonstrate, a contextual analysis of a statutory
provision is in no way “untethered” from the statute’s text. Ante, at 15,
n. 6. To the contrary, the majority’s reading of the saving clause—with
its singular focus on the undefined word “licensing” to the exclusion of
all contextual considerations—is “untethered” from the statute as a
whole.
3 None of the pre-IRCA state laws cited by the majority provided for
licensing-related sanctions. The parties have not identified any pre-
IRCA state laws related to licensing that purported to regulate the
employment of unauthorized aliens other than those governing agricul­
tural labor contractors. See ante, at 13–14 (BREYER, J., dissenting).
Cite as: 563 U. S. ____ (2011) 5
SOTOMAYOR, J., dissenting
(“[L]egislation containing employer sanctions is the most
humane, credible and effective way to respond to the
large-scale influx of undocumented aliens”). As the major­
ity explains, IRCA makes it “unlawful for a person or
other entity 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); ante, at
3. IRCA also requires employers to verify that they have
reviewed documents establishing an employee’s eligibility
for employment. See §1324a(b); ante, at 3–4. These two
provisions are the foundation of IRCA’s “comprehensive
scheme prohibiting the employment of illegal aliens in the
United States.” Hoffman, 535 U. S., at 147.
Congress made explicit its intent that IRCA be enforced
uniformly. IRCA declares that “[i]t is the sense of the
Congress that . . . the immigration laws of the United
States should be enforced vigorously and uniformly.”
§115, 100 Stat. 3384 (emphasis added). Congress struc­
tured IRCA’s provisions in a number of ways to accom­
plish this goal of uniform enforcement.
First, and most obviously, Congress expressly displaced
the myriad state laws that imposed civil and criminal
sanctions on employers who hired unauthorized aliens.
See §1324a(h)(2); see also H. R. Rep. No. 99–682, at 58
(“The penalties contained in this legislation are intended
to specifically preempt any state or local laws providing
civil fines and/or criminal sanctions on the hiring, re­
cruitment or referral of undocumented aliens”). Congress
could not have made its intent to pre-empt state and local
laws imposing civil or criminal sanctions any more “ ‘clear
[or] manifest.’ ” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485
(1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S.
218, 230 (1947)).
Second, Congress centralized in the Federal Govern­
ment enforcement of IRCA’s prohibition on the knowing
employment of unauthorized aliens. IRCA instructs the
6 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
Attorney General to designate a specialized federal agency
unit whose “primary duty” will be to prosecute violations
of IRCA. §1324a(e)(1)(D). IRCA also instructs the Attor­
ney General to establish procedures for receiving com­
plaints, investigating complaints having “a substantial
probability of validity,” and investigating other violations.
§1324a(e)(1); see also 8 CFR §274a.9 (2010). Upon con­
cluding that a person has violated IRCA, the Attorney
General must provide the person with notice and an op­
portunity for a hearing before a federal administrative law
judge (ALJ). 8 U. S. C. §§1324a(e)(3)(A), (B). If the person
does not request a hearing, the Attorney General may
impose a final, nonappealable order requiring payment of
sanctions. §1324a(e)(3)(B). If the person requests a hear­
ing, the ALJ is required to hold a hearing and, upon find­
ing that the person has violated IRCA, must order the
payment of sanctions. §1324a(e)(3)(C). The ALJ’s order is
the final agency order, unless the affected person requests
and obtains further administrative appellate review.
§1324a(e)(7); see also 28 CFR §68.54 (2010). IRCA grants
immigration officers and ALJs “reasonable access to
examine evidence of any person or entity being investi­
gated” and provides them with extensive subpoena powers.
§1324a(e)(2). And the immigration officers investigating
suspected violations obviously have access to the relevant
federal information concerning the work authorization
status of the employee in question.4
Third, Congress provided persons “adversely affected”
by an agency order with a right of review in the federal
courts of appeals. §1324a(e)(8); see also §1324a(e)(9)
(directing the Attorney General in cases of noncompliance
to file suit in federal district court to enforce a final order
——————
4 By regulation, the Attorney General has conferred on parties
charged with violating IRCA the right to obtain discovery from the
Federal Government in a hearing before an ALJ. See 28 CFR §68.18.
Cite as: 563 U. S. ____ (2011) 7
SOTOMAYOR, J., dissenting
imposing sanctions); §1324a(f) (authorizing the Attorney
General to pursue injunctive relief and criminal sanctions
in federal district court). In this way, Congress ensured
that administrative orders finding violations of IRCA
would be reviewed by federal judges with experience
adjudicating immigration-related matters.
Fourth, Congress created a uniquely federal system by
which employers must verify the work authorization
status of new hires. Under this system, an employer must
attest under penalty of perjury on a form designated by
the Attorney General (the I–9 form) that it has examined
enumerated identification documents to verify that a new
hire is not an unauthorized alien. §1324a(b)(1)(A); see
also 8 CFR §274a.2; ante, at 3–4. Good-faith compliance
with this verification requirement entitles an employer to
an affirmative defense if charged with violating IRCA.
§1324a(a)(3); see also H. R. Rep. No. 99–682, at 57. Nota­
bly, however, IRCA prohibits use of the I–9 form for any
purpose other than enforcement of IRCA and various
provisions of federal criminal law. §1324a(b)(5); 8 CFR
§274a.2(b)(4). Use of the I–9 form is thus limited to fed
eral proceedings, as the majority acknowledges. See ante,
at 18, n. 9.
Finally, Congress created no mechanism for States to
access information regarding an alien’s work authoriza­
tion status for purposes of enforcing state prohibitions on
the employment of unauthorized aliens. The relevant
sections of IRCA make no provision for the sharing of
work authorization information between federal and state
authorities even though access to that information would
be critical to a State’s ability to determine whether an
employer has employed an unauthorized alien. In stark
contrast, a separate provision in the same title of IRCA
creates a verification system by which States can ascer­
tain the immigration status of aliens applying for benefits
under programs such as Medicaid and the food stamp
8 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
program. See IRCA §121(a)(1)(C), 42 U. S. C. §1320b–
7(d)(3). The existence of a verification system in one
provision of IRCA, coupled with its absence in the provi­
sion governing employment of unauthorized aliens, sug­
gests strongly that Congress did not contemplate any role
for the States in adjudicating questions regarding em­
ployment of unauthorized aliens. Cf. Bates v. United
States, 522 U. S. 23, 29–30 (1997) (“Where Congress in­
cludes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion” (internal quotation
marks and brackets omitted)).
In an attempt to show that Congress intended for the
Federal Government to share immigration-related in­
formation with the States, Arizona points to a federal
statute, 8 U. S. C. §1373(c), requiring the Government to
respond to certain inquiries from state agencies. Section
1373(c), however, merely requires the Government to
respond to inquiries from state agencies “seeking to verify
or ascertain the citizenship or immigration status of any
individual within the jurisdiction of the agency.” It does
not require the provision of information regarding an
alien’s work authorization status, which is not necessar-
ily synonymous with immigration status. See 8 CFR
§274a.12(c) (identifying categories of legal aliens “who
must apply for employment authorization”).5 Arizona has
not identified any federal statute or regulation requiring
the Federal Government to provide information regarding
an alien’s work authorization status to a State.6 More
——————
5 For example, spouses and minor children of persons working in the
United States as exchange visitors must apply for employment authori­
zation even though they have lawful immigration status as dependents
of the exchange visitor. See 8 CFR §274a.12(c)(5).
6 In its capacity as an employer, a State may be able to access in­
formation regarding the work authorization status of its employees
Cite as: 563 U. S. ____ (2011) 9
SOTOMAYOR, J., dissenting
importantly, §1373(c) was enacted in 1996, see §642(c),
110 Stat. 3009–707, and thus says nothing about Con­
gress’ intent when it enacted IRCA’s saving clause a dec­
ade earlier. See Jones v. United States, 526 U. S. 227, 238
(1999).
Collectively, these provisions demonstrate Congress’
intent to build a centralized, exclusively federal scheme
for determining whether a person has “employ[ed], or
recruit[ed] or refer[red] for a fee for employment, unau­
thorized aliens.” 8 U. S. C. §1324a(h)(2).
C
IRCA’s saving clause must be construed against this
backdrop. Focusing primarily on the text of the saving
clause, Arizona and the majority read the clause to permit
States to determine themselves whether a person has
employed an unauthorized alien, so long as they do so in
connection with licensing sanctions. See ante, at 12–13.
This interpretation overlooks the broader statutory con­
text and renders the statutory scheme “[in]coherent and
[in]consistent.” Ali, 552 U. S., at 222.
Under the majority’s reading of the saving clause, state
prosecutors decide whether to commence licensing-related
proceedings against a person suspected of employing an
unauthorized alien. The majority’s holding also permits
state courts and other tribunals to adjudicate the question
whether an employer has employed an unauthorized alien.
The Arizona Act illustrates the problems with reading the
saving clause to permit such state action. The Act directs
prosecutors to verify an employee’s work authorization
with the Federal Government pursuant to §1373(c), e.g.,
Ariz. Rev. Stat. Ann. §23–212(B) (West Supp. 2010), and
the state court “shall consider only the federal govern­
ment’s determination pursuant to [§]1373(c)” in “determin­
——————
through use of E-Verify.
10 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
ing whether an employee is an unauthorized alien,” e.g.,
§23–212(H).7 Putting aside the question whether §1373(c)
actually provides access to work authorization informa­
tion, §1373(c) did not exist when IRCA was enacted in
1986. See supra, at 9. Arizona has not identified any
avenue by which States could have accessed work authori­
zation information in the first decade of IRCA’s existence.
The absence of any such avenue at the time of IRCA’s
enactment speaks volumes as to how Congress would have
understood the saving clause to operate: If States had no
access to information regarding the work authorization
status of aliens, how could state courts have accurately
adjudicated the question whether an employer had em­
ployed an unauthorized alien?
The Arizona Act’s reliance on §1373(c) highlights the
anomalies inherent in state schemes that purport to adju­
dicate whether an employee is an authorized alien. Even
when Arizona prosecutors obtain information regarding
an alien’s immigration status pursuant to §1373(c), the
prosecutors and state court will have to determine the
significance of that information to an alien’s work authori
zation status, which will often require deciding techni-
cal questions of immigration law. See, e.g., 8 CFR
§§274a.12(a)–(c) (dividing 62 different classes of aliens
into those authorized for employment incident to immigra­
tion status, those authorized for employment with a spe­
cific employer incident to immigration status, and those
who must apply for work authorization). And, as dis­
cussed above, that information may not shed light at all on
an alien’s work authorization status, which is oftentimes
distinct from immigration status. See supra, at 8, and
n. 5. As a result, in many cases state decisions—made by
——————
7 However, the “federal government’s determination creates [only] a
rebuttable presumption of the employee’s lawful status.” E.g., §23–
212(H).
Cite as: 563 U. S. ____ (2011) 11
SOTOMAYOR, J., dissenting
prosecutors and courts with no or little experience in
federal immigration law—will rest on less-than-complete
or inaccurate information, “creat[ing] enforcement risks
not present in the federal system.” Ante, at 7 (BREYER, J.,
dissenting). I can discern no reason why Congress would
have intended for state courts inexperienced in immigra­
tion matters to adjudicate, in the context of licensing
sanctions, the very same question that IRCA commits to
federal officers, ALJs, and the courts of appeals.
Equally problematic is the fact that employers charged
under a state enforcement scheme with hiring unauthor­
ized aliens are foreclosed from using I–9 forms in their
defense in the state proceedings. Like IRCA, the Arizona
Act confers an affirmative defense on employers who
comply in good faith with IRCA’s verification requirement.
See Ariz. Rev. Stat. Ann. §§23–212(J), 23–212.01(J). As
discussed above, however, IRCA prohibits an employer
from using the I–9 form to establish that affirmative
defense under Arizona law. See 8 U. S. C. §1324a(b)(5); 8
CFR §274a.2(b)(4). Not to worry, the majority says: The
employer can establish the affirmative defense through
office policies and testimony of employees. Ante, at 18,
n. 9. But Congress made the I–9 verification system and
accompanying good-faith defense central to IRCA. See,
e.g., H. R. Rep. No. 99–682, at 60 (“[A]n effective verifica­
tion procedure, combined with an affirmative defense for
those who in good faith follow the procedure, is essential”).
Given the importance of this procedure, if Congress in fact
intended for state courts to adjudicate whether a person
had employed an unauthorized alien in connection with
licensing sanctions, why would it have prohibited that
person from using the I–9 form—“the employer’s most
effective evidence,” ante, at 9 (BREYER, J., dissenting)—in
the state-court proceeding? The question answers itself:
Congress intended no such thing.
Furthermore, given Congress’ express goal of “uni­
12 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
for[m]” enforcement of “the immigration laws of the
United States,” IRCA §115, 100 Stat. 3384, I cannot be­
lieve that Congress intended for the 50 States and count­
less localities to implement their own distinct enforcement
and adjudication procedures for deciding whether employ­
ers have employed unauthorized aliens. Reading the sav­
ing clause as the majority does subjects employers to a
patchwork of enforcement schemes similar to the one that
Congress sought to displace when it enacted IRCA. Hav­
ing carefully constructed a uniform federal scheme for
determining whether a person has employed an unauthor­
ized alien, Congress could not plausibly have meant to
create such a gaping hole in that scheme through the
undefined, parenthetical phrase “licensing and similar
laws.” See Whitman v. American Trucking Assns., Inc.,
531 U. S. 457, 468 (2001) (“Congress . . . does not, one
might say, hide elephants in mouseholes”).
In sum, the statutory scheme as a whole defeats Ari­
zona’s and the majority’s reading of the saving clause.
Congress would not sensibly have permitted States to
determine for themselves whether a person has employed
an unauthorized alien, while at the same time creating a
specialized federal procedure for making such a determi­
nation, withholding from the States the information nec­
essary to make such a determination, and precluding use
of the I–9 forms in nonfederal proceedings. See United
States v. Locke, 529 U. S. 89, 106 (2000) (“We decline to
give broad effect to saving clauses where doing so would
upset the careful regulatory scheme established by federal
law”).
To render IRCA’s saving clause consistent with the
statutory scheme, I read the saving clause to permit
States to impose licensing sanctions following a final
federal determination that a person has violated
§1324a(a)(1)(A) by knowingly hiring, recruiting, or refer­
Cite as: 563 U. S. ____ (2011) 13
SOTOMAYOR, J., dissenting
ring for a fee an unauthorized alien.8 This interpretation
both is faithful to the saving clause’s text, see supra, at 2–
3, and best reconciles the saving clause with IRCA’s “care­
ful regulatory scheme,” Locke, 529 U. S., at 106. It also
makes sense as a practical matter. In enacting IRCA’s
pre-emption clause, Congress vested in the Federal Gov­
ernment the authority to impose civil and criminal sanc­
tions on persons who employ unauthorized aliens. Licens­
ing and other types of business-related permissions are
typically a matter of state law, however. See, e.g., Kamen
v. Kemper Financial Services, Inc., 500 U. S. 90, 98 (1991)
(noting that “[c]orporation law” is an area traditionally
“governed by state-law standards”); Chicago Title & Trust
——————
8 This reading of the saving clause finds support in IRCA’s legislative
history. The House Committee on the Judiciary reported that IRCA
was “not intended to preempt or prevent lawful state or local processes
concerning the suspension, revocation or refusal to reissue a license to
any person who has been found to have violated the sanctions pro­
visions in this legislation.” H. R. Rep. No. 99–682, at 58 (emphasis
added). The Committee’s reference to “this legislation” is, of course, a
reference to IRCA, and only federal officers, ALJs, and courts have
authority under IRCA to find that a person has violated the statute’s
sanctions provisions.
My reading is also consistent with, though not compelled by, the
provisions in IRCA that amended the Migrant and Seasonal Agricul­
tural Worker Protection Act (AWPA), 96 Stat. 2583. As JUSTICE
BREYER discusses in detail, see ante, at 13–15 (dissenting opinion),
AWPA requires entities to secure a certificate of registration from the
Department of Labor before engaging in any “farm labor contracting
activity.” AWPA §101, 96 Stat. 2587, 29 U. S. C. §1811(a). Before 1986,
AWPA prohibited farm labor contractors from hiring unauthorized
aliens, and it permitted the Department of Labor to institute adminis­
trative proceedings to enforce this prohibition. See §§103(a)(3), 103(b),
106(a), 96 Stat. 2588–2590. In IRCA, Congress repealed this pro­
hibition, IRCA §101(b)(1)(C), but authorized the Secretary of Labor to
withdraw a contractor’s federal registration certificate upon a finding of
an IRCA violation, IRCA §101(b)(1)(B)(iii), 100 Stat. 3372, 29 U. S. C.
§1813(a)(6). Thus, IRCA made AWPA’s licensing sanctions turn on a
prior federal adjudication of a violation of IRCA.
14 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U. S.
120, 127 (1937) (“How long and upon what terms a state­
created corporation may continue to exist is a matter
exclusively of state power”). As a result, if Congress
wanted to “ensur[e] that a full range of sanctions [was]
available to be used against businesses that employ unau­
thorized aliens,” Brief for Respondent 37, Congress had to
authorize the States and localities to impose licensing
sanctions following a federal adjudication of a violation of
IRCA.
I do not mean to suggest that the mere existence of a
comprehensive federal scheme necessarily reveals a con­
gressional intent to oust state remedies. Cf. English v.
General Elec. Co., 496 U. S. 72, 87 (1990) (“[T]he mere
existence of a federal regulatory or enforcement scheme
. . . does not by itself imply pre-emption of state reme­
dies”); New York State Dept. of Social Servs. v. Dublino,
413 U. S. 405, 415 (1973) (rejecting the argument that
“pre-emption is to be inferred merely from the comprehen­
sive character of the federal [program]”). Here, Congress
has made clear its intent to oust state civil and criminal
remedies; the sole question is the scope of the saving
clause’s exception for “licensing and similar laws.” The
comprehensive scheme established by Congress necessar­
ily informs the scope of this clause. For all the reasons
stated, the only interpretation of that clause that is consis­
tent with the rest of the statute is that it preserves the
States’ authority to impose licensing sanctions after a final
federal determination that a person has violated IRCA’s
prohibition on the knowing employment of unauthorized
aliens.
Under my construction of the saving clause, the Arizona
Act cannot escape pre-emption. The Act authorizes Ari­
zona county attorneys to commence actions charging an
employer with having employed an unauthorized alien.
Ariz. Rev. Stat. Ann. §§23–212(D), 23–212.01(D). Arizona
Cite as: 563 U. S. ____ (2011) 15
SOTOMAYOR, J., dissenting
state courts must find that an employer has employed an
unauthorized alien before imposing the sanctions enumer­
ated in the Act. §§23–212(F), 23–212.01(F). Because the
Act’s sanctions are not premised on a final federal deter­
mination that an employer has violated IRCA, I would
hold that the Act does not fall within IRCA’s saving clause
and is therefore pre-empted.9
II
I agree with the conclusion reached by JUSTICE BREYER
in Part IV of his dissenting opinion that federal law impli­
edly pre-empts the provision in the Arizona Act requiring
all Arizona employers to use the federal E-Verify program.
See Ariz. Rev. Stat. Ann. §23–214. I also agree with much
of his reasoning. I write separately to offer a few addi­
tional observations.
As we have recently recognized, that a state law makes
mandatory something that federal law makes voluntary
does not mean, in and of itself, that the state law “stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,” Crosby v. Na
tional Foreign Trade Council, 530 U. S. 363, 373 (2000)
(internal quotation marks omitted). See Williamson v.
Mazda Motor of America, Inc., 562 U. S. ___, ___ (2011)
(slip op., at 1–2) (concluding that a federal regulation
permitting manufacturers to choose between two seatbelt
options did not pre-empt state tort liability based on a
decision to install one of those options); see also id., at ___
(slip op., at 2) (SOTOMAYOR, J., concurring) (“[T]he mere
fact that an agency regulation allows manufacturers a
choice between options is insufficient to justify implied
——————
9 Because I believe that the Arizona Act does not fall within IRCA’s
saving clause for this reason, I have no reason to consider the sepa-
rate question whether the Act’s definition of “license” sweeps too
broadly. Compare ante, at 9–11, with ante, at 1–2, 11–12 (BREYER, J.,
dissenting).
16 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
pre-emption”).
This case, however, is readily distinguishable from cases
like Williamson, in which state law regulates relationships
between private parties. Here, the Arizona Act directly
regulates the relationship between the Federal Govern­
ment and private parties by mandating use of a federally
created and administered resource. This case thus impli­
cates the “uniquely federal interes[t]” in managing use of a
federal resource. Boyle v. United Technologies Corp., 487
U. S. 500, 504 (1988) (internal quotation marks omitted);
see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S.
341, 347 (2001) (“[T]he relationship between a federal
agency and the entity it regulates is inherently federal
in character because the relationship originates from, is
governed by, and terminates according to federal law”).
Significant policy objectives motivated Congress’ deci­
sion to make use of E-Verify voluntary. In addition to
those discussed by JUSTICE BREYER, see ante, at 17–19
(dissenting opinion), I note that Congress considered the
cost of a mandatory program. In 2003, when Congress
elected to expand E-Verify to all 50 States but declined to
require its use, it cited a congressionally mandated report
concluding that the annual cost of the pilot program was
$6 million, the annual cost of a nationwide voluntary
program would be $11 million, and the annual cost of a
nationwide mandatory program would be $11.7 billion.
H. R. Rep. No. 108–304, pt. 1, p. 6 (2003); see also Insti­
tute for Survey Research, Temple Univ., and Westat, INS
Basic Pilot Evaluation: Summary Report 38 (2002) (con­
cluding that the Social Security Administration (SSA) and
the Immigration and Naturalization Service were not
“capable of enrolling and administering a program for the
hundreds of thousands of employers in any of the large
mandatory programs explored here”). A more recent re­
port prepared for the Department of Homeland Security
similarly noted the costs associated with mandatory use of
Cite as: 563 U. S. ____ (2011) 17
SOTOMAYOR, J., dissenting
E-Verify. See Westat, Findings of the E-Verify® Program
Evaluation 224 (2009) (observing that the SSA estimated
that it would have to hire an additional 1,500 field staff
to handle a mandatory national program); id., at 251 (re­
commending that any expansion of E-Verify take place
gradually “to allow the Federal government adequate time
to hire and train the new staff required to run such a
program”). Permitting States to make use of E-Verify
mandatory improperly puts States in the position of mak­
ing decisions for the Federal Government that directly
affect expenditure and depletion of federal resources.10
The majority highlights the Government’s statement in
its amicus brief that “ ‘the E-Verify system can accommo­
date the increased use that the Arizona statute and exist­
ing similar laws would create.’ ” Ante, at 25 (quoting Brief
for United States as Amicus Curiae 34). But “[t]he pur­
pose of Congress is the ultimate touchstone in every
pre-emption case.” Medtronic, 518 U. S., at 494 (internal
quotation marks omitted). It matters not whether the
Executive Branch believes that the Government is now
capable of handling the burdens of a mandatory system.11
Congressional intent controls, and Congress has repeat­
edly decided to keep the E-Verify program voluntary.
Because state laws requiring use of E-Verify frustrate
the significant policy objectives underlying this decision,
——————
10 In Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___
(2011) (slip op., at 10), we held that the Federal Government’s judg­
ment regarding the cost effectiveness of seatbelt options did not reveal
an intent “to forbid common-law tort suits in which a judge or jury
might reach a different conclusion.” The obvious distinction between
that case and this one is that Congress’ decision to keep use of E-Verify
voluntary bears directly on the costs to the Federal Government itself.
11 Notably, the Government’s brief does not state that the E-Verify
system could accommodate the increased use that would result if all 50
States enacted similar laws; it limits its statement to “the Arizona
statute and existing similar laws.” Brief for United States as Amicus
Curiae 34 (emphasis added).
18 CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING
SOTOMAYOR, J., dissenting
thereby imposing explicitly unwanted burdens on the
Federal Government, I would hold that federal law impli­
edly pre-empts the Arizona requirement.
* * *
For these reasons, I cannot agree with either of the
Court’s holdings in this case. I respectfully dissent.