U.S. Supreme Court

Case Status


Docket Number


2010 Term

Oral Argument Date

December 08, 2010


Questions Presented

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly preempt[s] 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).

2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.

3. Whether the Arizona statute is impliedly preempted because it undermines the comprehensive scheme that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

Case Updates


May 26, 2011


(1) Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.

(2) 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” outside the Federal Government “to participate in” E-Verify.

(3) The Arizona licensing law is not impliedly preempted by federal law. Given that Congress specifically preserved such [licensing] authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority.

U.S. Chamber files opening brief

September 01, 2010

NCLC urged the Supreme Court to hold that the employment provisions of Arizona’s 2007 immigration law are preempted by the Immigration Reform and Control Act (IRCA). The Arizona law imposes sanctions on employers, including the revocation of business licenses without an opportunity for a hearing, who are deemed to have knowingly hired undocumented workers. The state also requires mandatory compliance with the E-Verify employment verification program, which is voluntary under federal law. IRCA, passed in 1986, expressly preempts any state or local laws, other than licensing and similar laws, that impose penalties upon those who employ undocumented workers. NCLC argued that the Arizona law is not a licensing law, but rather a regulatory system for determining employment authorization.

Cert. petition granted

June 28, 2010

U.S. Chamber files cert. petition in federal preemption employment case

July 24, 2009

Complaint filed in Arizona District Court 12/09/07. Motion for temporary restraining order (TRO) and preliminary injunction filed 12/10/07. Order denying TRO dated 12/21/07. Decided by district court 2/7/08.

Plaintiffs’ notice of appeal filed 2/8/08. Opening brief for Ninth Circuit appeal filed 3/31/08. Appellees’ response filed 4/29/08. Plaintiffs’ reply filed 5/13/08. Oral argument held 6/12/08. Decided by Ninth Circuit 9/17/08. Rehearing en banc denied 3/9/09.

Cert. petition filed 7/24/09. Amicus briefs in support of Chamber’s cert. petition filed 8/27/09. Brief in opposition filed 9/28/09. Reply brief filed 10/13/09. Call for the Views of the Solicitor General 11/2/09. Cert. grant recommended by Solicitor General 5/28/10. Supplemental brief filed 6/7/10. Cert. granted 6/28/10.

Opening brief filed 9/1/10. Reply brief filed 11/22/10. Oral argument held 12/8/10. Decision 5/26/11.

Case Documents