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Chamber of Commerce v. Whiting

Chamber of Commerce v. Whiting
Argued December 8, 2010
Decided May 26, 2011
Full case name Chamber of Commerce of the United States of America, et al., Petitioners v. Michael B. Whiting, et al.
Docket nos. 09–115
Citations 563 U.S. ___ (more)
Prior history dismissed for lack of jurisdiction sub nom.Arizona Contractors Ass'n, Inc. v. Napolitano (Arizona Contractors I), 526 F.Supp.2d 968 (D. Ariz., 2007); refiled, judgement for defendants sub nom. Arizona Contractors Ass'n, Inc. v. Candelaria (Arizona Contractors II), 534 F.Supp.2d 1036. (D. Ariz., 2008); affirmed sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th. Cir., 2009); certiorari granted, 561 U.S. ___ (2010)
Court membership
Case opinions
Majority Roberts, joined by Scalia, Kennedy, Alito; Thomas (except as to Parts II–B and III–B)
Dissent Breyer, joined by Ginsburg
Dissent Sotomayor
Kagan took no part in the consideration or decision of the case.

Chamber of Commerce v. Whiting, 563 U.S. ___ (2011), is a decision by the Supreme Court of the United States that upheld an Arizona state law that punished businesses that hire illegal aliens.[1]


  • The Case 1
  • Background 2
  • Decision 3
  • Implication of and Responses to the Ruling 4
  • References 5
  • External links 6

The Case

Chamber of Commerce v. Whiting was a United States Supreme Court case which dealt with the question of whether the Legal Arizona Workers Act was invalid under federal statutes, in particular the Immigration Reform and Control Act. On May 26, 2011, the Supreme Court ruled, in a 5-3 decision, that The Legal Arizona Workers Act was not preempted by federal legislation.[2] Justices Roberts, Scalia, Kennedy, Alito and Thomas formed the majority opinion, while Justices Breyer, Ginsburg and Sotomayor formed the minority opinion (with Sotomayor filling her own dissenting opinion); Justice Kagan was recused in the case, because of having a prior role in the case because of her former role as the U.S. Solicitor General.


“The Legal Arizona Workers Act allows superior courts in Arizona to suspend or revoke business licenses of employers who knowingly or intentionally hire unauthorized aliens” and also “makes participation in E-Verify (a system that determines eligibility for employment based on information from I-9 forms and U.S. Department of Homeland Security and Social Security Administration records) mandatory for all employers.” The main questions presented in this case were: whether or not The Legal Arizona Workers Act, which “imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute” (Immigration Reform and Control Act) which “preempt[s] any State or local law imposing civil or criminal sanctions” “upon those who employ, or recruit or refer for a fee for employment, unauthorized alien,” whether or not the Arizona’s statute requiring the use of the federal electronic employment verification system by all employers is preempted by the federal law, and whether or not the “Arizona statute is impliedly preempted because it undermines the ‘comprehensive scheme’ that Congress created to regulate the employment of aliens.”[3] Simply put, the Supreme Court had to determine whether or not the federal law which said that companies cannot be punished for hiring undocumented workers unknowingly, except in cases of licensing, would prevent a state, in this instance Arizona, from having a law that imposed sanctions on employers who hired undocumented workers.


The majority ruled that federal law “does not prevent Arizona from revoking the business licenses of state companies that knowingly hire undocumented workers, or from requiring employers in the state to use a federal electronic system to check that their workers are authorized to work in the United States.”[4] During the oral arguments, Justice Scalia, in particular, defended the states’ authority in questions of enforcement of immigration laws, given what “he perceived as a failure of the federal government” to enforce laws to keep undocumented workers out of the country.[5] In addition, since the federal statute indicated that the state government were allowed to take action “through licensing and similar laws,” Chief Justice Roberts and Justices Alito indicated that Arizona’s law was valid under the federal law because that part of the federal statute was very broad.

In his writing of the majority opinion, Chief Justice Roberts accepted the arguments that the state of Arizona had made about how the initiative was narrow and closely tracked and was modeled after the objectives of the 1986 federal law.[6] He also indicated that the Arizona law was the “route least likely to cause tension with federal law” and that the saving clause “provid[ed] a licensing exemption to general preemption of state worker laws.”

Even though Justice Kennedy joined the majority opinion, during the oral arguments, Justice Kennedy appeared to agree with some of the arguments that were made by the dissenting Justices. On an argument Justice Ginsburg made about “an anomaly” that Arizona is forbidden by federal law to impose a fine for hiring an undocumented worker, but Arizona, in this case, has the ability to revoke a license to do business. Also, on the question of the Arizona E-Verify provisions, Kennedy indicated that the E-Verify provisions “is almost a classic example of doing something inconsistent with the federal requirement” given that the federal law indicates that the federal E-Verify is a voluntary system, but the Arizona E-Verify Provisions made the program mandatory to a greater extent.[7] One of the dissenting Justices, Justice Breyer, indicated, during oral arguments, that he believed that “Congress…had taken ‘an absolutely balanced’ approach,” in an attempt to ensure undocumented workers were not able to get jobs, but to also make sure that businesses did not discriminate in hiring to avoid the risk of losing its license.

In disagreement with the majority opinion that the licensing exception was broad, Justice Sotomayor indicated that the majority’s reading of the exception “cannot be reconciled” with the rest of what Congress enacted in 1986 saying that “Congress could not plausibly have intended…for the saving clause to operate in the way the majority reads it to do.” Along that line, Justices Sotomayor and Breyer argued that the Arizona law went far beyond the “scope of federal control” which “actively frustrate federal efforts and compromise the need for uniformity in dealing with unlawful aliens.” Given the Arizona law creates new enforcement mechanisms in handling of undocumented workers, the state law prevents uniform policies between the state, which, according to these Justices, was in the spirit of the federal legislation – to have uniform policies.

Implication of and Responses to the Ruling

Some argue that Supreme Court sent a “strong signal” that the states will be afforded the ability to control and experiment with laws involving undocumented workers who live and work with each given state, given the Court’s majority indicated that the licensing exception to the federal law was a very broad exception. In her dissent, Justice Sotomayor indicated that the majority had “turned states loose to ‘determine for themselves whether someone has employed an unauthorized alien so long as they do so in conjunction with licensing sanctions.”[8]


  1. ^
  2. ^ 1. LawMemo, Chamber of Commerce of the United States v. Whiting,
  3. ^ 4. LawMemo, Chamber of Commerce of the United States v. Whiting,
  4. ^ 5. Supreme Court of the United State blog, Chamber of Commerce of the United States v. Whiting,
  5. ^ 6. Lyle Denniston, On aliens, Arizona may win — for now, SCOTUSblog (December 8, 2010, 1:56 PM),
  6. ^ 8. Lyle Denniston, Opinion recap: Shared role on aliens’ jobs, SCOTUSblog (May. 26, 2011, 12:51 PM),
  7. ^ 11. Lyle Denniston, On aliens, Arizona may win — for now, SCOTUSblog (December 8, 2010, 1:56 PM),
  8. ^ 16. Lyle Denniston, Opinion recap: Shared role on aliens’ jobs, SCOTUSblog (May. 26, 2011, 12:51 PM),

External links

  • Text of Chamber of Commerce v. Whiting is available from:  U.S. Supreme Court slip opinion 

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