Arizona's tough immigration law requiring employers to use the federal E-Verify employment verification system and penalizing those who hire illegal immigrants by revoking their business licenses is not preempted by federal immigration law and does not violate employers' rights to due process, the U.S. Court of Appeals for the Ninth Circuit ruled Sept. 17 (Chicanos por la Causa Inc. v. Napolitano, 9th Cir., No. 07-17272, 9/17/08).
 
Writing for the court, Judge Mary M. Schroeder affirmed a lower court decision and rejected the plaintiffs' argument that the law, called the Legal Arizona Workers Act, was preempted by the Immigration Reform and Control Act--whose savings clause permits state "licensing and similar laws"--finding that the state statute is a licensing law and thus is not expressly preempted by the federal law.

In addition, the court said employers' due process rights are not violated by the law. "An employer's opportunity to present evidence at a hearing in superior court, in order to rebut the presumption of the employee's unauthorized status, provides the employer a meaningful opportunity to be heard before sanctions are imposed," the court determined.

However, in the absence of enforcement to date against any single employer since the law took effect Jan. 1, 2007, the court left open the possibility that the law may come under future judicial scrutiny. "If and when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision," the court said.

The suit was brought by a coalition of business and immigrant rights groups, including Chicanos por la Causa Inc., U.S. Chamber of Commerce, and Arizona Employers for Immigration Reform.

Efforts by the various groups to stop enforcement of the Arizona employer sanctions law, which began March 1, failed Feb. 28 when the Ninth Circuit rejected numerous requests to issue injunctions to stop county prosecutors from enforcing it.

Arizona Gov. Janet Napolitano (D) signed the measure (H.B. 2779) in July 2007, stating that the law was necessary despite defects in the bill and criticizing Congress for failing to enact a law curbing illegal immigration. At the time, Napolitano called the new law the most aggressive action nationwide against employers who knowingly or intentionally hire undocumented workers.