The “Arizonification” of Immigration Law: Implications of Chamber of Commerce v. Whiting for State and Local Immigration Laws

Marisa S. Cianciarulo, Chapman University School of Law

Abstract

This article explores the validity of state and local immigration-related legislation through the lens of the recent Supreme Court decision in Chamber of Commerce of the United States v. Whiting. Whiting upheld the Legal Arizona Workers Act of 2007, a state law governing through licensing provisions the employment of unauthorized alien workers. The article examines the implications that this decision will have for state and local immigration-related laws, primarily the Hazleton, Pennsylvania Illegal Immigration Reform Act Ordinance of 2006 and the Support Our Law Enforcement and Safe Neighborhoods Act of Arizona of 2010, otherwise known as S.B. 1070. Both of these laws are the subject of pending litigation in federal courts. In June 2011, the Supreme Court granted certiorari in the Hazleton litigation, remanding the case to the U.S. Court of Appeals for the Third Circuit – which had upheld a district court decision to enjoin portions of the Hazleton ordinance – with instructions to reconsider the case in light of the Whiting decision. In August 2011, Arizona filed a petition for writ of certiorari with the U.S. Supreme Court after the U.S. Court of Appeals for the Ninth Circuit upheld a district court decision enjoining portions of S.B. 1070. This article predicts that Whiting may have significant implications for the Arizona and Hazleton laws as well as for similar laws passed by numerous states in recent years. On the one hand, because Whiting upholds the Legal Arizona Workers Act, it may encourage additional states to pass immigration-related laws. On the other hand, the narrowness of the decision, which dealt only with a state’s ability to penalize the hiring of unauthorized alien workers through licensing provisions allowed by federal law, may signal that state and local lawmakers may only pass immigration-related legislation specifically permitted by federal law. This article ultimately concludes that the Supreme Court stayed true to preemption doctrine and that Whiting limits rather than expands state and local government authority to pass immigration-related laws.