Chamber of Commerce v. Whiting: A Law Student's Freewheeling ...

National Law Forum ? November 11, 2012 ? Leave a Comment

The National Law Review?is pleased to announce the winner of the Fall 2012 Law Student Legal Writing Contest,?Laura Ploeg?of the?Villanova University School of Law?whose article,?Chamber of Commerce v. Whiting: A Law Student?s Freewheeling Inquiry, was featured in The?National Law Review:

I. Introduction

?Illegal immigration? is a phrase that elicits strong opinions from many people.¹Debate on the topic includes the blatantly racist,²?sympathy for the plight of immigrants,³?and less emotionally based arguments that fall in between. It is estimated that there are over ten million undocumented aliens in the United States.⁴Most people do not contest that something must be done about illegal immigration; the question becomes what.⁵?In an attempt to stem the tide of illegal immigration, some states have begun to enact their own immigration laws.⁶?Many state laws purport to regulate things like housing or employment, but in effect act as immigration regulations.^7?Arizona passed laws of this sort, one of which targets employment of unauthorized aliens, thus targeting a primary incentive for immigration.⁸?This law was recently the subject of litigation in the United States Supreme Court.⁹

This note attempts to show that the Supreme Court, in Chamber of Commerce v. Whiting,¹⁰?should have found that federal law pre-empts the Arizona law, and that there will be serious implications resulting from the Court?s contrary holding.¹¹Section II of this note provides an overview of Whiting and the relevant state and federal statutes considered therein, the Court?s reasoning, and the holdings it reached. Section III discusses principles of the pre-emption doctrine relevant to Whiting. This discussion begins with an overview of the federal power to legislate in the area of immigration, and an introduction to the germane principles of pre-emption. The discussion then lays out pre-emption doctrine case law including application early on, more recently, in the specific area of immigration law, and in the very specific area of employment authorization. Finally, Section IV discusses practical concerns resulting from Whiting.

II. Overview of Chamber of Commerce v. Whiting

In Whiting, the United States Supreme Court analyzed potential pre-emption of Arizona law by two federal statutes, the Immigration Reform and Control Act (IRCA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).¹²?This section summarizes the relevant state and federal laws, the Court?s holdings on the pre-emption issue, and its basic reasoning leading it to those holdings.

IRCA requires all employers to verify employment authorization of all new hires, outlines the required verification procedure, and imposes sanctions for knowingly hiring an unauthorized alien.¹³?IRCA also contains a pre-emption provision, which states that, ?The provisions of this section preempt 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.?¹⁴The language allowing state licensing laws constitutes a saving clause that saves a small class of state law from pre-emption.¹⁵

IIRIRA authorized the creation of E-Verify as an ?experimental complement[] to the I-9 process? of document review.¹⁶?E-verify is an electronic system for employers to verify employment authorization of workers.¹⁷?IIRIRA announces that use of E-Verify is voluntary and prohibits the Secretary of Homeland Security from mandating its use for anyone outside of the federal government.¹⁸?Use of E-Verify for employment authorization verification, however, creates a rebuttable presumption of compliance with IRCA.¹⁹

Arizona law requires that all employers use E-Verify.²⁰?The attorney general or county attorney is required to request information from the federal government regarding the immigration status of a worker upon complaint, by any person, that a worker is unauthorized.²¹?Upon a determination that an employer has knowingly hired an unauthorized alien, the law imposes various sanctions ranging from mandatory termination of the employee, mandatory filing of quarterly reports for all new hires, and a ten-day suspension of the employer?s business license for a first time offense, to permanent revocation of all business licenses for a second offense.²²

Several business groups and civil rights organizations, led by the Chamber of Commerce (?Chamber?), challenged the Arizona law on several grounds.²³?First, Chamber argued that the Arizona law is explicitly pre-empted because it is not a legitimate licensing law; it does not serve to grant licenses, but only to suspend or revoke them.²⁴?The Court rejected this argument as having ?no basis in law, fact, or logic.?²⁵?The Court also refused to consider Chamber?s argument that the saving clause should be read narrowly in light of the history of its enactment, stating that the plain text of IRCA does not compel the suggested reading.²⁶

Chamber next argued that the Arizona licensing law is impliedly pre-empted on field pre-emption grounds.²⁷?In other words, state law is ousted from the field of law because federal legislation comprehensively occupies it.²⁸?The Court rejected Chamber?s argument, asserting that because the Arizona law falls within the saving clause, it cannot offend any congressional intention to oust state law.²⁹

Chamber also argued that the Arizona law is pre-empted because it upsets the balance struck by Congress among competing goals of ?deterring unauthorized alien employment, avoiding burdens on employers, protecting employee privacy, and guarding against employment discrimination.?³⁰?The Court asserted that licensing is not a traditionally federal area of regulation, and denied that state law would impede federal programs.³¹?The Court also downplayed the pressure placed on employers, and the corresponding potential for discrimination.³²?Finally, the Court stated that, ?[i]mplied preemption analysis does not justify a ?freewheeling judicial inquiry into whether a state statute is in tension with federal objectives,?? because ??it is Congress rather than the courts that preempts state law.??³³

Finally, the Court rejected Chamber?s argument that IIRIRA impliedly pre-empts the Arizona law?s E- Verify mandate.³⁴?The Court concluded that federal law ?limits what the Secretary of Homeland Security may do?nothing more.?³⁵?Sidestepping congressional intent, the Court instead pointed to President George W. Bush?s expression of support for the Arizona law.³⁶?The Court did reference Congress?s objectives in developing E-Verify, but failed to address its specific objectives for making use voluntary.³⁷?Thus focusing on the broader objectives of E-Verify, the Court found state law did not undermine legislative purposes.³⁸

In rejecting Chamber?s argument that state E-Verify mandates would result in an unsustainable drain on federal resources, the Court relied on a statement by the Department of Homeland Security (DHS).³⁹?DHS expressed confidence that the E-Verify system could handle use resulting from Arizona?s mandate in addition to similar existing mandates, but did not address the specific issue of federal resources or the consequences of additional state mandates.⁴⁰?In sum, the Court rejected all express and implied pre-emption arguments by Chamber, without undertaking a sincere analysis of implied pre-emption.⁴¹

III. Pre-emption Doctrine and Implied Pre-emption: Its History, Current Contours, and How It Applies to Immigration Law

This section provides an overview of the pre-emption doctrine, specifically principles of implied pre- emption. First is a discussion of the federal power to regulate immigration, followed by an overview of
general pre-emption principles. Next follows a glance at implied pre-emption over time, including application early on, more recently, in the specific area of immigration law, and in the even more specific area of employment of aliens. Finally, the last part of this section attempts to show that implied pre-emption principles dictate pre-emption of Arizona law.

A. Basis for Federal Power to Legislate in the Area of Immigration Law

Under the Supremacy Clause of the Constitution, federal law pre-empts conflicting state law so long as it is made in pursuance of the Constitution.⁴²?The Supreme Court has long recognized that Congress holds plenary power to regulate immigration.⁴³?Although the Supreme Court has found different bases for the federal exercise of this power over time, the Court has most recently attributed this power to the Naturalization Clause of the Constitution.⁴⁴?That clause states that Congress has the power to ?establish a uniform Rule of Naturalization.?⁴⁵

As early as 1875, the Supreme Court has recognized Congress? power to legislate in the area of immigration, initially citing the Commerce Clause as the basis of such power.⁴⁶?In several other cases, the Court has stated the power is grounded in authority inherent in independence and sovereignty.⁴⁷?It has also specifically linked the power to inherent foreign affairs powers.⁴⁸

Most recently, in INS v. Chadha,⁴⁹?the Court stated that federal power to regulate immigration is grounded in the Naturalization Clause.⁵⁰?In that case, noncitizen Chadha overstayed his visa and was
subsequently subject to removal proceedings.⁵¹?Because he never sought naturalization, the Supreme Court arguably extended the Naturalization Clause beyond its plain text to matters of immigration law in general.⁵²?Regardless of the foundation attributed to federal power over immigration law, the Court has consistently recognized that Congress possesses such power.⁵³

B. General Principles of Pre-emption

Federal legislation may pre-empt state legislation either expressly or impliedly.⁵⁴Implied pre-emption is further divided into two categories, field pre-emption and implied conflict pre-emption.⁵⁵?These pre-emption principles apply to conflicts between state and federal law in all areas where federal power is exercised legitimately, which includes immigration law.⁵⁶

Express pre-emption occurs where Congress chooses to ?pre-empt state law by so stating in express
terms.?⁵⁷?All other forms of pre-emption fall under the label of implied pre-emption.⁵⁸Field pre-emption occurs when congressional intent to pre-empt all state law in a particular area is ?inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ?left no room? for supplementary state regulation.?⁵⁹

Implied conflict pre-emption can occur in two different ways.⁶⁰?First, it can occur ?when ?compliance with both federal and state regulations is a physical impossibility.??⁶¹?Secondly, implied conflict pre-emption can occur ?when state law ?stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.??⁶²

Any argument that the Arizona law is expressly pre-empted would likely result in a battle of different definitions of the word ?license.?⁶³?Thus, because the strongest argument that the Arizona law is pre-empted by IRCA and IIRIRA is grounded in implied pre-emption, the following discussion will focus on this type of pre-emption.⁶⁴

C. Implied Pre-emption Cases in General

The Supreme Court has developed and applied the pre-emption doctrine for over 150 years.⁶⁵?Accordingly, a wealth of case law exists regarding the doctrine, within which implied conflict pre-emption plays a major role, despite the Whiting Court?s quick dismissal of any serious inquiry of this type.⁶⁶?This section will discuss relevant case law, in an effort to demonstrate that the Court has frequently been willing to employ a much more rigorous inquiry into implied pre-emption than the Whiting Court.

1. Early Use of Implied Pre-emption

The Supreme Court has long recognized implied pre-emption, developing and applying implied pre- emption principles over many years.⁶⁷?One early case, Houston v. Moore, clearly establishes pre-emption as a mechanism by which federal law trumps state law.⁶⁸?Houston dealt with a Pennsylvania law that imposed penalties for not reporting when called for active military duty, and laid out a procedure for state adjudication.⁶⁹?The state enacted this statutory scheme despite concurrent penalties and procedures prescribed by federal law.⁷⁰?The Court found that the power to govern the militia, once it has been called forth, is an exclusively federal power.⁷¹?Moreover, the Court noted that in areas where federal and state governments both have power to legislate, once Congress has spoken, state law must give way.⁷²?Finally, the Court recognized that even if state legislation is not ousted from the area of law, if it is ?practically inconsistent? with federal law, it ?must yield to the supremacy of the laws of the United States.?⁷³

2. Persisting Use of Implied Pre-emption in More Recent Years

The Supreme Court has continued to rely on implied pre-emption, affirming that its validity has not faded over time.⁷⁴?As recently as 1996, in Medtronic, Inc. v. Lohr,⁷⁵the Court expressed strong support for implied pre-emption principles and analysis of legislative purpose.⁷⁶?In utilizing such an approach, the Court explained that its ?analysis of the scope of the statute?s pre-emption is guided by
our oft-repeated comment . . . that ?[t]he purpose of Congress is the ultimate touchstone in every pre- emption case.??⁷⁷?Elaborating further, the Court explained that, ?any understanding of the scope of a pre-emption statute must rest primarily on ?a fair understanding of congressional purpose.??⁷⁸

Even more recently, in 2000, in Geier v. American Honda Motor Co.,⁷⁹?the Court discussed pre-emption principles as they applied to federal law with many relevant similarities to the federal laws considered in Whiting, IRCA and IIRIRA.⁸⁰?First, the federal law in Geier resembled IRCA in that it also had a pre-emption provision.⁸¹Moreover, the law also had a ?saving clause? within which the state law fell.⁸²

After finding that the state law fell within the saving clause of the federal law, the Geier Court continued its analysis to determine whether the state law conflicted with the federal law in a way that
would implicate implied pre-emption.⁸³?Thus, the Court concluded that, ?the saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles.?⁸⁴
Similarly, later in the opinion, the Court again stressed that neither the existence of the pre-emption provision nor the saving clause ?create[d] some kind of ?special burden? beyond that inherent in ordinary pre-emption principles?which ?special burden? would specially disfavor pre-emption here.?⁸⁵

Throughout its analysis, the Geier Court expressed strong support for pre-emption of state law where it conflicts with the operation or objectives of federal law, despite the existence of a saving clause.⁸⁶?In one such statement of support, the Court declared that it ?has repeatedly ?decline[d] to give broad effect to saving clauses,?? if doing so would upset the balance struck by federal law.⁸⁷?Later, the Court queried why Congress would have expected bypass of ordinary pre-emption principles despite actual conflict between federal objectives and state law.⁸⁸?The Court concluded that Congress would not have intended that result.⁸⁹

The Court asserted that there is not a legal, but merely a terminological, difference ?between ?conflicts? that prevent or frustrate the accomplishment of a federal objective and ?conflicts? that make it ?impossible? for private parties to comply with both state and federal law.?⁹⁰?Thus, the Court concluded that state laws creating either situation are invalid.⁹¹?The Geier Court asserted that this approach has been the practice of the Court and that it ?has thus refused to read general ?saving? provisions to tolerate actual conflict both in cases involving impossibility purpose? cases.?⁹²

The Geier dissent attacked the majority with the same language used by the Whiting majority, claiming that analysis of ?frustration-of-purpose? pre-emption involves an unacceptable ?freewheeling judicial inquiry.?⁹³?Both the Geier dissent and the Whiting majority based their unwillingness to undertake such an inquiry on the idea that ??it is Congress rather than the courts that preempts state law.??⁹⁴?The Geier majority responded to the dissent?s attack by commenting that pre-emption principles are difficult enough to apply without further complicating them by drawing new distinctions, as the dissent would have done.⁹⁵?Specifically, it voiced concern that such an approach would create ?legal uncertainty? and associated issues.⁹⁶

The federal law in Geier, as it applied to airbag installation, is also useful for considering IIRIRA, the other federal law at issue in Whiting.⁹⁷?In Geier, federal law required auto manufacturers to equip their
cars with ?passive restraints,? which included airbags.⁹⁸?The law did not specifically mandate airbags for several reasons, including safety concerns.⁹⁹?It also did not prohibit installation of airbags on all cars, but left the choice to the manufacturer.¹⁰⁰?The federal law also sought to gradually phase-in passive restraints, largely to allow for technological development and increased safety of airbags.¹⁰¹?The Court held that state negligence law, which created liability for failure to install airbags, was pre-empted by federal law.¹⁰²?It rested its conclusion on implied conflict pre-emption, asserting that state law upset the balance struck by federal law.¹⁰³

IIRIRA is similar to the federal law in Geier in that it does not mandate an employer?s use of E- Verify.¹⁰⁴?Also, similar to extra credit given by the federal law in Geier for installation of airbags, IIRIRA provides employers who use E-Verify with a rebuttable presumption of compliance with IRCA.¹⁰⁵?Like the federal law in Geier, which mandated installation of safety devices, but left open the choice of installing seatbelts or going a step further by installing airbags,¹⁰⁶?federal immigration law mandates employment verification but leaves open the decision of whether to use E-Verify in addition to I-9s (document inspection).¹⁰⁷?Furthermore, the state law in each case sought to mandate use of something, voluntary under federal law, which required further development to ensure its proper functioning.¹⁰⁸?Finally, similar to the phasing-in of passive restraints in Geier, E-Verify is a pilot program.¹⁰⁹

Although the federal law in Geier contained an express pre-emption provision (and related saving clause) and IIRIRA does not, the Geier Court found that these portions of the law did not answer the pre-emption question and, thus, employed ordinary pre-emption principles.¹¹⁰?Hence, there should have been no discrepancy between the principles used to assess potential pre-emption in each case.¹¹¹Application of the implied pre-emption principles employed in Geier dictates that Arizona law is pre-empted.

D. Implied Conflict Pre-emption Cases in the Specific Area of Immigration Law

The Supreme Court has made no exception for the application of pre-emption principles in the specific
area of immigration law.¹¹²?In Hines v. Davidowitz,¹¹³?a Pennsylvania law imposed on immigrants certain registration requirements and corresponding sanctions for violations that did not parallel co-existing federal law.¹¹⁴?In undertaking an implied pre-emption analysis, the Court explained that, ?states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.?¹¹⁵?Additionally, the Court explained that its task involved determining whether state law stood as an obstacle to the purposes and objectives of federal law.¹¹⁶

Rather than limit its application of implied pre- emption principles due to the subject matter, the Court emphasized the exigency of such an analysis in the area of immigration law.¹¹⁷?Specifically, the Court asserted that, in making a determination, ?it is of importance that this legislation is in a field which affects international relations, the one aspect of our government that from the first has beemost generally conceded imperatively to demand broad national authority.?¹¹⁸?Thus, ordinary pre-emption principles are fully applicable to immigration law.

E. Pre-emption of State Laws Regulating Employment of Noncitizens ? From DeCanas v. Bica¹¹⁹?to Chamber of Commerce v. Whiting

Analysis of Whiting is not complete without mentioning DeCanas, because it is the Supreme Court case most analogous to Whiting in that it also dealt with the specific issue of pre-emption in the context of state law regarding employment of noncitizens.¹²⁰?This section gives a brief overview of DeCanas, and explains the differences between DeCanas and Whiting.

1. DeCanas v. Bica and INA: A Brief Explanation

The relevant federal law in DeCanas was the Immigration and Nationality Act (INA).¹²¹?IRCA was passed ten years after DeCanas, thus replacing INA as the relevant federal statute in Whiting.^122?IRCA developed a comprehensive legislative scheme for employment authorization verification.¹²³?INA, by contrast, did not explicitly deal with employment of noncitizens.¹²⁴?Thus, the DeCanas Court found that California law was not impliedly pre-empted by INA under field pre-emption.¹²⁵The Court gave three reasons for its holding: first, states have traditionally held broad police powers to regulate employment in order to protect workers;¹²⁶second, an exercise of this police power ?must give way to paramount federal legislation¹²⁷?and finally, no paramount federal legislation existed, because Congress had shown no more than a ?peripheral concern with employment of illegal entrants.?¹²⁸

Next, the Court considered whether the state law was pre-empted on implied conflict pre-emption grounds.¹²⁹?The Court, however, found that the record provided to it by the lower court was too incomplete to determine whether or not the California law created an obstacle to federal objectives.¹³⁰?Thus, the Court concluded that the state law was not pre-empted, based solely on its field pre-emption analysis.¹³¹

2. Differences between Whiting and DeCanas

DeCanas, though it similarly dealt with pre-emption of state law regarding employment of noncitizens, is not controlling because of the subsequent enactment of IRCA.¹³²?Also, DeCanas differed from Whiting in that the INA contained no pre-emption provision or saving clause.¹³³?Finally, the DeCanas Court did not undertake an implied conflict pre-emption analysis because the record was insufficient.¹³⁴Significantly, however, the DeCanas Court acknowledged implied category of pre-emption.¹³⁵

F. What Was Congress?s Intent for IRCA and IIRIRA?

The text of IRCA and IIRIRA necessitate pre- emption of Arizona law. IRCA establishes a detailed scheme regarding admissions of immigrants and nonimmigrants, and employment eligibility for each category of noncitizen.¹³⁶?It also sets out a detailed scheme for enforcing its employment authorization requirements.¹³⁷?Immigration and Customs Enforcement (ICE) is authorized to bring charges against employers who violate the requirements of federal law.¹³⁸?IRCA leaves to the states only the power to impose licensing sanctions.¹³⁹?Because ICE is given the power to bring charges for violations, the text allows states to impose licensing sanctions only in response to final determinations resulting initially brought by ICE.¹⁴⁰

Mandating use of E-Verify directly conflicts with the text of IIRIRA. IIRIRA makes use of E-Verify voluntary, as explicitly noted by several headings and subheadings of the relevant provisions.¹⁴¹?IIRIRA also instructs the Secretary of Homeland Security to ?widely publicize? the fact that participation is voluntary, and prohibits the Secretary from mandating its use for anyone outside of the federal government.¹⁴²

Aside from the textual difficulties with finding the Arizona law not pre-empted, the state law also creates an obstacle to federal legislative purposes. Courts have discerned four primary purposes intended by Congress for IRCA:¹⁴³?first, stemming illegal immigration;¹⁴⁴?second, minimizing burdens on employers;¹⁴⁵?third, preserving legal immigration by minimizing illegal immigration;¹⁴⁶?lastly, creating misdemeanor criminal liability for employment of unauthorized workers.¹⁴⁷

Janet Napolitano, the Governor of Arizona who signed into law the state law at issue in Whiting, stated that she did so because she viewed Congress incapable of providing what she believed was needed immigration reform, and because she hoped to reduce ?the flow of illegal immigration into Arizona,? by reducing or eliminating the availability of employment.¹⁴⁸?Thus, the Arizona law was intended to further only the first IRCA goal?stemming illegal immigration?without providing protection for the other goals, because it was meant to supplant dissatisfactory federal legislation and enforcement.¹⁴⁹?Therefore, the Arizona law has the effect of altering the ?delicate balance of statutory objectives? struck by IRCA.¹⁵⁰

The Arizona law also undermines congressional intent regarding E-Verify?by mandating that which Congress explicitly made voluntary, there are few clearer ways to undermine Congress? objectives.¹⁵¹?The Court relied on an Executive Order by President George W. Bush mandating use of E-Verify for federal contractors, and his contemporaneous statement of belief in the validity of Arizona?s law, as evidence that the Arizona law did not undermine congressional intent.¹⁵²?The Court also relied on DHS?s opinion that E-Verify could sustain existing state E-Verify mandates.¹⁵³

Despite the weak probative value of considering the statutory interpretation of anyone other than Congress to show congressional intent, the strong negative reaction and legal challenges to the Executive Order and the fact that the President?s statement of support for the Arizona law was made in the context of these challenges, tends to negate any such value.¹⁵⁴?Additionally, the Court?s reference to Congress?s purposes for creating E-Verify does not shed much light on its decision to make it voluntary.¹⁵⁵?Finally, the Court?s reliance on DHS was misplaced because DHS is not a competent source for questions regarding the federal budget.¹⁵⁶

IV. After Whiting

Whiting is unlikely to be an isolated case with limited impact.¹⁵⁷?Since Whiting, other similar litigation has begun, and litigation that was already underway will undeniably be impacted by the decision.¹⁵⁸?This is especially true because the Supreme Court recently reaffirmed Whiting?s approach to analyzing state immigration laws.¹⁵⁹?Also, Whiting creates several practical concerns about other state laws have been proposed or enacted.¹⁶⁰

A. Other Cases Involving State Immigration Laws

1. United States v. Arizona¹⁶¹

Arizona has enacted other state immigration laws in addition to the one considered in Whiting, most notably the Support Our Law Enforcement and Safe Neighborhoods Act (?S.B. 1070?).¹⁶²?S.B. 1070 creates state offenses for immigration law violations.¹⁶³?The United States challenged the state law on pre-emption grounds in United States District Court, and the District of Arizona granted a preliminary injunction to enjoin enforcement of several provisions of S.B. 1070.¹⁶⁴Both parties appealed and the Circuit Court affirmed.¹⁶⁵?This affirmation occurred, however, about a month before Whiting was decided, and it is unclear what effect the Supreme Court?s decision in Whiting will have on the case when it is decided on the merits.

2. Lozano v. Hazleton¹⁶⁶

The City of Hazleton, Pennsylvania, enacted local ordinances criminalizing employment and housing of undocumented aliens, and imposing various sanctions upon employers, landlords, and others, who violate the ordinances.¹⁶⁷?The district court found the local ordinances pre-empted by federal law, and issued a permanent injunction against their enforcement.¹⁶⁸?On appeal, the Third Circuit affirmed in large part.¹⁶⁹?After Whiting, the Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration based on Whiting.¹⁷⁰?It is possible that the outcome of this case Whiting.¹⁷¹

B. Other Recently Passed or Proposed State Laws

The implications of Whiting are not confined to litigation of state immigration laws that is already underway; other states are continuing to enact such laws and litigation is increasing.¹⁷²?For example, the Department of Justice recently filed a complaint challenging a recently passed Alabama law, which targets employment of unauthorized workers, as well as transportation, housing, and schooling of undocumented aliens, among other things.¹⁷³?Also, several other states have proposed or enacted immigration legislation, including Georgia, Mississippi, Nebraska, Oklahoma, Pennsylvania, South Carolina, and Tennessee.¹⁷⁴

C. Problems with State Enforcement of Immigration Law

1. Unqualified Officials

Immigration law is a complicated body of law that has profound significance for those whose lives it touches.¹⁷⁵?In order to properly enforce immigration law, state and local police require extensive training, which also requires funding.¹⁷⁶?As it is, the method of adjudication designated by Congress provides that judges familiar with immigration law will hear charges of IRCA violations.¹⁷⁷?State courts, in contrast, are generally inexperienced with issues of federal law like immigration law.^178?Thus, state laws like the Arizona law in Whiting would place some of the most important issues of noncitizens? lives in the hands of those unknowledgeable about such issues.

2. Negative Effects for State and Local Police

Several recently passed or proposed state laws, including other Arizona legislation not at issue in Whiting, require noncitizens to carry immigration documentation with them at all times, and give state
and local police broad power to arrest and detain individuals they suspect of being in the country illegally.¹⁷⁹?Such laws have created concern, voiced by police and others, that public safety will be undermined.¹⁸⁰?This may result from noncitizens? reluctance to cooperate in police investigations or to report crimes, and from diverting resources away from public safety initiatives.¹⁸¹

3. E-Verify?s Limitations

Recent state laws that mandate use of E-Verify, like the Arizona law in Whiting, raise other concerns.
The program?s reliability is highly contested.¹⁸²?Also, mandatory use of E-Verify creates serious burdens for employers and employees; for example, employers must maintain access to computers and the Internet, and employees shoulder the burden of challenging tentative non-confirmations.^183?Also, E-Verify?s exclusive use of social security numbers for employment authorization verification could easily result in an increase in identity fraud.¹⁸⁴

V. Conclusion

Chamber of Commerce v. Whiting was a departure from the Supreme Court?s traditional application of
implied pre-emption and general pre-emption principles, which have been well established and repeatedly applied over many years.¹⁸⁵?The Court used implied pre-emption principles only a few years ago to strike down a state law with a similar relationship to federal law as the laws in Whiting.¹⁸⁶?The Whiting Court should have found Arizona law pre-empted by federal law because it undermines several federal objectives.¹⁸⁷?Moreover, Whiting has the potential to create serious practical problems, and has already begun to do so as more and more state immigration laws are passed or proposed.¹⁸⁸?It is time to return an exclusively federal power to the federal government and tear down the fa?ade of state laws purporting to regulate employment, housing, or other things but really meant to regulate immigration. Dissatisfaction with federal law must be dealt with at the federal
level.

???????????????????????

^{1 Cf. Southern Poverty Law Center (SPLC), Anti- Immigration Groups, Intelligence Report 101 (Spring 2011),?http://www.splcenter.org/get-informed/intelligence-report/browse-all-iss??(listing and briefly describing several anti-immigration groups).}

^{2 See SPLC, supra note 1 (describing anti-immigration groups); see also SPLC, The Year in Hate, 2000, Intelligence Report 101 (Spring 2001),?http://www.splcenter.org/get-informed/intelligence-report/browse-all-iss??(describing existence of racist and ethnic hate including ethnic nationalism).}

^{3 See Political Research Associates, National Pro- Immigrant Groups,http://www.publiceye.org/research/directories/immig_grp_defend.html?(last visited Oct. 10, 2011) (listing various pro-immigrant groups).}

^{4 Michael Hoefer, Nancy Rytina & Bryan C. Baker, Office of Immigration Statistics, Dept. of Homeland Security, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010, 1 (2011). It is difficult to know how many undocumented aliens are residing in the United States, thus estimates are made by subtracting the number of documented aliens from the number of foreign-born residents based on information collected by the Census Bureau. Id. For years between census collections, estimates are made by extrapolation based on recent immigration patterns. Id. Thus, those undocumented aliens who do not complete a Census form are not included in the estimate.}

^{5 Cf. Dream Act Portal,?http://dreamact.info/?(discussing one proposed reform to immigration law). The Dream Act would have given legal immigration status to children who were brought into the country by their parents and theoretically incapable of making the choice for themselves, so long as they complete certain required education or serve in the military. Id. The Act, however, did not make it past the?Senate, to the frustration of many. See Elise Foley, DREAM Act Vote Fails in Senate, Huffington Post (Dec. 18, 2010, 11:31 AM),http://www.huffingtonpost.com/2010/12/18/dream-act-
vote-senate_n_798631.html (discussing Dream Act?s failure in Senate).}

^{6 Cf. Nat?l Immigration Forum, Deficits, Lawsuits, Diminished Public Safety: Your State Can?t Afford S.B. 1070, December 30, 2010, available athttp://www.immigrationforum.org/images/uploads/2010/SB?1070Report.pdf laws).}

^{7 See, e.g., U.S. Dep?t of Justice, Department of Justice Challenges Alabama Immigration Law (2011),?http://www.justice.gov/opa/pr/2011/August/11-ag-?993.html (noting Alabama is ?designed to affect virtually every aspect of an unauthorized immigrant?s daily life?). The Alabama law regulates things like housing, transportation, right to contract, schooling, and other things. Id. Alabama and other states are regulating these areas with the specific aim of targeting undocumented aliens. Id.}

^{8 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1975-76 (2011) (discussing Arizona law).}

^{9 Id.}

^{10 131 S.Ct. 1968 (2011).}

^{11 Cf. George Blum et al., Tests Applied to Determine Preemption, 16A American Jurisprudence ? 234 (2d ed. 2011) (discussing pre-emption principles). Implied pre-emption principles, applied traditionally, dictate provide strong support for invalidation of Arizona law.}

^{12 See Whiting, 131 S.Ct. at 1974-75 (discussing and outlining relevant portions of IRCA and IIRIRA).}

^{13 See 8 U.S.C. ? 1324a(a), (b), (e)-(f) (2006) (explaining required procedure for employment authorization verification and sanctions for non-compliance). Specifically, the employer is required?to review documents of employment applicants that establish their work authorization and identification. ? 1324a(b). It is a crime to ?hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.? ? 1324a(a)(1)(A). Civil sanctions for knowingly hiring, recruiting, or referring unauthorized aliens for employment range from a minimum $250 fine for a first offense to a maximum $10,000 fine in the case of multiple previous violations. ? 1324a(e)(4)(A). Criminal sanctions include a maximum $3,000 fine and six months imprisonment for a pattern of violations. ? 1324a(f)(1).}

^{14 ? 1324a(h)(2).}

^{15 See Whiting, 131 S.Ct. at 1977-78 (discussing saving clause and Arizona law).}

^{16 See Id. at 1975 (discussing E-Verify and other programs created by IIRIRA).}

^{17 See Naomi Barrowclough, Note, E-Verify: Long-Awaited ?Magic Bullet? or Weak Attempt to Substitute Technology for Comprehensive Reform?, 62 Rutgers L. Rev. 791, 793 (2010) (explaining E-Verify).}

^{18 See Whiting, 131 S.Ct. at 1975 (explaining limitation on Secretary?s authority to require use of E-Verify). The Secretary of Homeland Security is only permitted to require use of E-Verify by individuals or entities within the Federal Government. Id.}

^{19 See Id. (explaining rebuttable presumption created by use of E-Verify).}

^{20 See Id. at 1976-77 (laying out Arizona law).}

^{21 See Id. at 1976 (explaining relevant portions of Arizona law). Interesting to note is that the Arizona law prohibits state and local officials from making final determinations about work authorization on their own, yet there is no mechanism whereby they can obtain information regarding the work authorization of noncitizens. The Arizona law directs state and local officials to obtain information regarding immigration}

^{22 See Id. (explaining sanctions imposed by Arizona law). It should also be noted that, because state courts will be hearing charges brought for alleged violations of Arizona law, the state courts will also be the ones to determine whether or not the employment of an unauthorized alien was ?knowingly,? which will be a different determination than under federal law, due to mandatory use of E-Verify. If an employer fails to use E-Verify, yet followed the I-9 procedure required by federal law, they would still not be able to effectively challenge a charge of knowingly hiring an unauthorized alien. It could be argued that any lack of knowledge that a worker is unauthorized was due to the employer?s failure to use E-Verify as required by Arizona law. This also means that actions taken which would provide a defense under federal law would be insufficient under Arizona law.}

^{23 See Julie Myers Wood, Supreme Court Affirms a State Immigration Law?What it Means, 2011 Emerging Issues 5686, 5687 (June 2011) (noting identity of plaintiffs in Chamber of Commerce v. Whiting).}

^{24 See Whiting, 131 S.Ct. at 1979 (explaining and rejecting Chamber?s argument regarding licensing laws). Chamber?s argument seemingly asserted that a licensing law is more comprehensive than a law that merely prescribes licensing sanctions. This may also indicate that Arizona?s law is different in substance and purpose than the ordinary state function of licensing, but rather is an immigration regulation in disguise. This raises a question regarding why a? state may do what it ordinarily cannot simply by calling it by a different name.}

^{25 See Id. at 1977-79 (considering whether Arizona law is licensing law). The Court noted that Arizona?s definition of ?license? is nearly identical to the definition of that term within the Administrative Procedure Act. Id. at 1978. It also found Arizona?s Inclusion of ?documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies,? was acceptable. Id. Thus, the Court concluded that, ?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.? Id. at 1981.}

^{26 See Id. at 1979 (explaining and rejecting Chamber?s argument for narrow reading of saving clause). Chamber argued that Congress?s concurrent repeal of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and enactment of IRCA support a narrow reading. Id. Specifically, Chamber argued that state licensing sanctions should only be available after a federal adjudication. Id. Prior to IRCA, AWPA prohibited hiring unauthorized workers, and outlined adjudicatory procedures for violations. Id. When Congress enacted IRCA and repealed AWPA, adjudications of employment of unauthorized workersfor agricultural work, which can result in suspension or revocation of labor certification, had rest on a prior finding of an IRCA violation for the first time. Id. The Court, however, found this to be merely evidence that Congress ?eliminated that potential redundancy.? Id. Although Chamber argued that the elimination of a redundancy is further evidence that Congress intended uniformity in the law, rather than separate laws for each state, the Court again reverted to the plain text of the statute and the fact that the Arizona law claims to rely on federal determinations. Id. at 1979-80. The only federal determinations provided to the state, however, are those regarding immigration status as opposed to work authorization. Id. at 1992 (Breyer, J., dissenting).}

^{27 See Id. at 1981 (noting Chamber?s field pre-emption argument). Chamber argued that the Arizona law necessarily conflicted with federal law, because Congress had intended its legislation to be exclusive. Id. (quoting Brief for Petitioner at 39 Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011) (No. 09-115)).}

^{28 See Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (explaining field pre-emption).}

^{29 See Whiting, 131 S.Ct. at 1981 (?Arizona?s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws.?).}

^{30 Id. at 1983.}

^{31 See Id. (distinguishing from prior cases). The Court distinguishes from all of the cases cited by Chamber regarding state laws that upset the balance struck by federal law. The Court argues that all of these cases involved legislation of matters that are uniquely federal. Id. In this case, the Court explains, licensing laws are not a traditionally federal concern. Id. However, the Court fails to discuss that the Arizona law is a licensing sanction for immigration law violations, and that it has, and is intended to have, clear effects on immigration and employment of noncitizens.}

^{32 See Id. at 1984 (rejecting argument that discrimination will increase from Arizona law). Justice Breyer and Chamber argue that businesses are likely to discriminate in their hiring practices rather than risk license suspension or revocation
under the Arizona law. Id. The Court argues that such a result is unlikely because license suspension and revocation are sanctions only for knowing violations, and proclaims that, ?An employer acting in good faith need have no fear of the sanctions.? Id. The Court also asserts that the Arizona law will not displace IRCA?s anti-discrimination provisions. Id. However, Congress foresaw potential for discrimination with the I-9 process alone, and thus contemporaneously prohibited discrimination in hiring practices based on national origin or citizenship status. See Andrew P.??Karabetsos, Immigration-Related Employment Discrimination Under IRCA, 82 Ill. B.J. 32, 32 (1994) (explaining Congress?s purpose for prohibition of discrimination in IRCA). Adding further verification requirements and further sanctions under state law can
only increase the potential for discrimination.}

^{33 Id. at 1985 (quoting Gade v. Nat?l Solid Wastes Mgmt. Ass?n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).}

^{34 See Id. at 1985-86 (rejecting Chamber?s argument that Arizona law requiring E-Verify use is pre-empted by federal law). Chamber did not challenge Arizona?s E-Verify mandate on express pre-emption grounds because IIRIRA does not contain a pre-emption provision. See Id. at 1985 (noting that IIRIRA ?contains no language circumscribing state action?).}

^{35 Id. at 1985.}

^{36 See Id. (discussing Executive Order 13465). President George W. Bush, in an Executive Order in 2008, required all federal contractors to use E-Verify and cited the Arizona law as support for the legitimacy of the Order. Id. He explained, when attacked on the grounds that E-Verify could not be made mandatory for anyone outside of the federal government, that he was acting in the same permissible way as Arizona by requiring E-Verify use, because IIRIRA only limits the authority of the Secretary of DHS to mandate E-Verify. Id. The Court did not discuss the significance of the fact that the Executive Order was also challenged, and that it was in this setting that the President spoke supportively of the Arizona law.}

^{37 See Id. at 1986 (explaining objectives of creating E-Verify). The Court stated that, ?Congress?s objective in authorizing the development of E-Verify was to ensure reliability in employment authorization verification, combat counterfeiting of identity?documents, and protect employee privacy.? Id.}

^{38 See Id. (finding that Arizona law does not conflict with congressional objectives). The Court, after noting the purposes of creating E-Verify, proclaimed that, ?Arizona?s requirement that employers operating within its borders use E-Verify in no way obstructs achieving those aims.? Id.}

^{39 See Id. (rejecting Chamber?s argument that nationwide E-Verify use would result in federal resource drains). It should also be noted that the Court cited DHS for the opinion that ??the E-Verify system can accommodate the increased use that the Arizona statute and existing similar laws would create.? Id. (emphasis added). This says nothing about federal resources, nor does it predict potential results of state E-Verify mandates beyond those existing.}

^{40 See Id. (discussing statement made by DHS).}

^{41 See Id. at 1981-85 (acknowledging and rejecting Chamber?s implied pre-emption arguments). The Court briefly considers Chamber?s implied pre-emption arguments, citing sources such as the President and DHS as support for its conclusion, and ends by stating that its analysis cannot be a ?freewheeling judicial inquiry.? Id.}

^{42 See U.S. Const. art. VI, ? 1, cl. 2 (?This Constitution, and the Laws of the United States which shall be made in Pursuance Thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.?).}

^{43 See Gary Endelman & Cynthia Juarez Lange, State Immigration Legislation and the Preemption Doctrine, 1698 Corp. Law & Prac. Course Handbook Series 123, 127 (2008) (noting that Supreme Court has long recognized federal power to regulate immigration); see also Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787, 795 (2008) (recognizing that for over 100 years, immigration law governing admission and removal has been accepted as a virtually exclusive federal power).}

^{44 See INS v. Chadha, 462 U.S. 919, 940 (1983) (finding federal power to regulate immigration based upon Naturalization Clause). The primary issue in Chadha involved the constitutionality of legislative vetoes. Id. at 923. In contrast to the way legislative vetoes were usually exercised, to override administrative regulations, the veto in this case would have overturned an administrative adjudication. Id. at 923. The issue of federal power to regulate immigration was only raised as part of the Court?s response to the government?s assertion that Chadha?s claim was a non-justiciable political question. Id. at 940. In the course of rejecting that assertion, the Court stated that, ?The plenary authority of Congress over aliens under Art. I, ?8, cl. 4 is not open to question.? Id. Thus, because the basis of the federal power to regulate immigration was not a primary issue of the case, it is arguable that the Court did not thoroughly consider whether or not such power is in fact derived from the Naturalization Clause.}

^{45 U.S. Const. art. I, ? 8, cl. 4.}

^{46 See, e.g., Edye v. Robertson (Head Money Cases), 112 U.S. 580, 600 (1884) (declaring Congress has ?the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations?); see also Henderson v. Mayor of New York, 92 U.S. 259, 270 (1875) (finding federal power to regulate immigration as derivative of Commerce Clause powers). In Henderson, the Court struck down a New York statute requiring a tax to be paid for each immigrant arriving to the country at any New York port. Henderson, 92 U.S. at 260-61. The Court explained that regulation of navigation is included in the power to regulate foreign commerce, because it is ?the principal means by which foreign intercourse is effected.? Id. at 270. The Court went further and asserted that the power to regulate navigation and, more specifically, the ?admission of vessels? includes the power to regulate ?admission of their cargo or their passengers.? Id. The Court further emphasized the influence on commerce by immigrants due to their labor and the wealth they bring with them. Id. Thus, the Court concluded that the state law was invalid for its encroachment upon the federal legislature?s power??to regulate commerce. Id. The Court summed up its conclusion by stating, ?As already indicated, the provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power ?to regulate commerce with foreign nations.?? Id. (quoting U.S. Const. art. I, ? 8, cl 3). It makes sense that 1875 marked the beginning of the Court?s recognition of federal power to regulate immigration. That year also marked the beginning of the federal government?s exercise of its power to regulate immigration. Prior to 1875, the federal government had mostly left the area of immigration law alone, thus states were able to pass their own legislation. See generally Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993) (describing status immigration law before 1875).}

^{47 See, e.g., Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 603-04 (1889) (finding federal power to regulate immigration grounded in inherent powers of sovereignty); see also Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (finding power to regulate immigration as part of inherent power to conduct foreign relations). The Court has concluded in various cases that power to regulate immigration is based on inherent powers of sovereignty, or foreign affairs. In the Chinese Exclusion Case, the Court relied on inherent powers of sovereignty, explaining that, ?Jurisdiction over its own territory to that extent is an incident of every independent nation. It is part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.? 130 U.S. at 603-04. Further along in the case, the Court listed some inherent powers of sovereignty as being ?[t]he powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republic governments to the states, and admit subjects of other nations to citizenship.? Id. at 605. In Chy Lung, the Court emphasized specifically the inherent sovereignty power to conduct foreign affairs, asserting that regulation of immigration is included within that power. To illustrate the risks of the removing this power from the exclusive exercise of the federal government, the Court asserted, ?If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.? 92 U.S. at 280. Thus, in order to effectively manage foreign affairs, the federal government must also have exclusive control over immigration law.}

^{48 See, e.g., Chinese Exclusion Case, 130 U.S. at 604 (emphasizing and describing inherent powers of sovereignty); see also Chy Lung, 92 U.S. at 279-80 (finding federal power to regulate immigration as part of inherent foreign affairs powers); see also Hines v. Davidowitz, 312 U.S. 52, 62-63 (1941) (finding federal power to regulate immigration as derivative of foreign affairs powers as evidenced by precedent and original intent). In the Chinese Exclusion Case, the Court asserted, in one of many such assertions throughout the opinion, that, ?[T]he United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.? 130 U.S. at 604. Thus, for concerns that traditionally belong to a sovereignty, especially in those matters necessary to the independence and safety of the entire country, the federal government necessarily has control.
In Chy Lung, a California statute gave the state?s Commissioner of Immigration authority to determine if an arriving immigrant was: ??lunatic, idiot, deaf, dumb, blind, crippled, or infirm, and is not accompanied by relatives who are able and willing to support him, or is likely to become a public charge, or has been a pauper in any other country, or is from sickness or disease (existing either at the time of sailing from the port of departure or at the time of his arrival in the State) a public charge, or likely soon to become so, or is a convicted criminal, or a lewd or debauched woman.?? 92 U.S. at 277. If an arriving immigrant fell into one of these categories as determined by the Commissioner, they would not be permitted to leave the vessel on which they arrived unless the master, owner or consignee gave a bond to ensure they would not create costs for the state. Id. Additionally, the Commissioner was allowed to charge the master, owner or consignee of the vessel various other fees. Id. at 277-78. The Court described the possible dangers of allowing states to regulate a subject, which has great potential for creating controversy with other nations, especially when a foreign nation?s citizens are found to fall into categories of ?lunatic, idiot, deaf, dumb, blind, crippled, or infirm,? or other undesirable categorizations. In considering such a possibility, the Court posed the question, ?[H]as the Constitution . . . done so foolish a thing as to leave it in the power of the States to pass laws whose enforcement renders the general government liable to just reclamations which it must answer, while it does not prohibit to the States the acts for which it is held responsible??. Id. at 280. The Court concluded that, ?The Constitution of the United States is no such instrument.? Id. The Court determined that the federal government must have the power to regulate immigration for, ?If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.? Id. In Hines, the Court found that a Pennsylvania alien registration law was pre-empted by a federal alien registration law. 312 U.S. at 62-63. The Court relied on precedent and the Federalist papers, explaining: ?[T]hat the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court. When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take away from the force and effect of such treaty or statute.? Id. Thus, the Court concluded that state law must be pre-empted because of ?the supremacy of the national power in the general field of foreign affairs, including immigration.? Id. at 62.}

^{49 462 U.S. 919 (1983).}

^{50 See Id. at 940 (?The plenary authority of Congress over aliens under Art. I, ? 8, cl. 4 is not open to question.?).}

^{51 See Id. at 923-24 (explaining background facts leading up to review by Supreme Court). Chadha came to the United States in 1966 with a nonimmigrant student visa, which expired in 1972. Id. at 923. In 1973, the INS commenced removal proceedings against Chadha. Id.}

^{52 See Id. (explaining Chadha?s immigration status leading up to review by Supreme Court). The facts of the case do not indicate that Chadha ever sought to adjust his status to that of lawful permanent resident, nor did he seek to extend the duration of his visa. The case notes that during removal proceedings, Chadha sought to suspend deportation on grounds of extreme hardship that would result from removal, but there is no indication that Chadha had any intention or desire to become naturalized. Id. The possibility exists that Chadha was not eligible for adjustment of status to lawful permanent resident, but that would not resolve the issue of the Court finding federal power to regulate nonimmigrant aliens under the Naturalization Clause.}

^{53 See, e.g., Edye v. Robertson (Head Money Cases), 112 U.S. 580 (1884); Henderson v. Mayor of New York, 92 U.S. 259 (1875); Chinese Exclusion Case, 130 U.S. 581; Chy Lung, 92 U.S. 275.?? ?}

^{54 See Blum, supra note 11 (discussing pre-emption principles).}

^{55 See Blum, supra note 11 (discussing pre-emption principles).}

^{56 See U.S. Const. art. VI, ? 1, cl. 2 (announcing supremacy of federal law over state law); see also Chadha, 462 U.S. at 940 (?The plenary authority of Congress over aliens under Art. I, ? 8, cl. 4 is not open to question.?).}

^{57 Hillsborough Cnty. v. Automated Med. Labs., 471 U.S. 707, 713 (1985).}

^{58 See generally Gregory M. Dickinson, An Empirical Study of Obstacle Preemption in the Supreme Court, 89 Neb. L. Rev. 682, 684-84 (2011) (outlining various types of pre-emption)}

^{59 Automated Med., 471 U.S. at 713 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).}

^{60 See Id. (explaining physical impossibility and obstacle versions of implied conflict pre-emption).}

^{61 Id. (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)).}

^{62 Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).}

^{63 See Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1977-1979 (2011) (considering intended meaning of ?license? in IRCA?s saving clause in relation to scope of Arizona law). The express pre-emption issue results in a battle of definitions, some of which are more or less supportive of the Arizona law. The Court determined that Arizona?s law is a licensing law because it fits within the meaning of that term as defined by various sources. Id. at 1977-78. There are not any very strong arguments challenging the Court?s finding.???}

^{64 See Id. (considering intended meaning of ?license?). Chamber?s express pre-emption argument essentially asserts that Congress was only referring to a narrow class of licenses, as reflected by historical context.??Id. at 1979. This argument, however, fails to explain why, if Congress had intended this narrow meaning of a word with many legal connotations, it did not make that clear in the text of the statute.}

^{65 See, e.g., In re Tarble, 80 U.S. 397, 406 (1871) (explaining relation between state and federal law and supremacy of federal law); see also Prigg v. Pennsylvania, 41 U.S. 539, 617-18 (1842) (asserting that state laws cannot intrude into an area of law controlled by federal law). In Tarble, the Court explained the relation between state and federal law, and the way pre-emption occurs: The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments. Tarble, 80 U.S. at 406.}

^{66 Compare Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (undertaking implied pre-emption analysis), with Whiting, 131 S.Ct. at 1985 (expressing reluctance to inquire into congressional intent). The Court in Lohr referenced a longstanding practice of the Court of undertaking an analysis of conflicting state and federal laws to determine whether the state law is impliedly pre-empted. Lohr, 518 U.S. at 485. It thus concluded that its ?analysis of the scope of the statute?s pre-emption is guided by our oft-repeated comment . . . that ?[t]he purpose of Congress is the ultimate touchstone? in every pre-emption case.? Id. (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). In Whiting, by contrast, the Court refused to conduct what it called a ??freewheeling judicial inquiry?? into the congressional intent or legislative purpose. Whiting, 131 S.Ct. at 1985. Instead, the Whiting Court said it is Congress?s job to pre-empt state law. Id. The Court, however, did not explain how Congress could pre-empt state laws that it may not even be able to predict, especially decades into the future, if courts are unwilling to conduct any more than a scant inquiry into legislative purposes.}

^{67 See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000); United States v. Locke,}

Source: http://nationallawforum.com/2012/11/11/chamber-of-commerce-v-whiting-a-law-students-freewheeling-inquiry/

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