Chamber of Commerce of United States v. Whiting (09-115)

argument 09-115

Chamber of Commerce of United States v. Whiting

Supreme Court of the United States 1h 0m 4 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the constitutional background of the Immigration Reform and Control Act discussed at the start of the argument?

John G. Roberts 0:02

We'll hear argument next this morning in Case 09-115, Chamber of Commerce v. Whiting. Mr. Phillips.

Paul D. Clement 0:08

Thank you, Mr. Chief Justice, and may it please the Court. In 1986, Congress converted what had been before that time a merely peripheral concern of immigration policy, that is, how to regulate worker authorization, and converted it into a core concern of immigration policy by the passage of the Immigration Reform and Control Act. This Court has characterized that change in legislation as providing a comprehensive scheme for dealing with those issues. And that characterization is obviously apt because Congress provided for an exhaustive and exclusively federal method of bringing to the attention of federal authorities problems in worker authorization, the method by which those matters should be investigated, the method by which they should be adjudicated, all of which are controlled as a matter of

Paul D. Clement 1:00

federal — exclusive federal activity. And indeed, the ultimate judicial review is — goes exclusively to the Federal Courts of Appeals. The sanctioning provisions are very explicit and they're very clear and they are very balanced. And for a good reason. Congress realized in this context that if you over-enforce in one direction — that is, if you try to deter the hiring of unauthorized workers, you run a very serious risk of causing employers to err on the side of not hiring others who are, in fact, authorized but who may fall into protected classes. And so Congress very carefully calibrated the penalties on both sides so that the employer essentially would play it straight down the middle and hire the best people for the job under these circumstances while, of course, complying, if at all possible, with the federal requirements.

Paul D. Clement 1:49

And so it's against that background. Why is

John G. Roberts 1:51

that a problem if, as the federal statute requires and the state statutes require, you have to show an intent to hire an unauthorized worker. Isn't that what the state statutes here require?

Paul D. Clement 2:09

Well, the state statute has two components to it. One is knowing and one is intent. But

John G. Roberts 2:14

Paul D. Clement 2:15

don't

John G. Roberts 2:15

see how that — So why is that a problem for the business? I mean, he saves so long as he doesn't intentionally hire an unauthorized worker.

Paul D. Clement 2:23

Well, I think part of the problem is that it is never 100 percent clear precisely who is and who is not an authorized worker. And I think what Congress said was, I'm not going to deal with this problem in the kind of granular way you're looking at it, Justice Scalia, which is specifically at each of the individual employment decisions. You're going to look at the generality of situations and realize that if you put on one side of the scale What Arizona has done here, which is to say you can essentially have the death penalty to the business, that is completely eliminate the business's right to exist, and on the other side of the scale, a $250 fine, it would be pretty remarkable to say, well, I'm going to hide behind the intent and knowing requirements and instead simply avoid, if at all possible, the risk of Arizona's sanctions being imposed.

John G. Roberts 3:16

Well, I think what Arizona would answer to that is, well, that's the only option the Federal Government left us. Well, I'm quite sure that that's what Arizona will say. We might have used reticulated penalties or, you know, enforced the federal law ourselves, but they forbade that. But they did allow us to enforce the law, immigration laws, through licensing, right? So it all essentially comes down to the licensing issue,

Paul D. Clement 3:44

doesn't it? Right. It does ultimately come down to the — through licensing laws. And the — And the fundamental problem, obviously, with Arizona's scheme here is that this is not a licensing law. This is a worker authorization sanctioning law.

Unknown 3:59

Well, when I picked up this brief and looked at this case, I thought, oh, well, licensing, that's a defined term. I'll look in Corpus Juris Secundum or ALR or something. But it really isn't. Your brief indicates you start with dictionaries. Fair enough. You indicate what federal licensing laws are.