OPINION OF THE COURT CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA V. WHITING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF
AMERICA, et al., PETITIONERS v. MICHAEL B. WHITING
et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[May 26, 2011]

															   Chief Justice Roberts delivered
the opinion of the Court, except as to Parts II–B and III–B.*

															   Federal immigration law expressly
preempts “any State or local law imposing civil or criminal
sanctions (other than through licensing and similar laws) upon
those who employ … unauthorized aliens.” 8 U. S. C.
§1324a(h)(2). A recently enacted Arizona statute—the Legal Arizona
Workers Act—provides that the licenses of state employers that
knowingly or intentionally employ unauthorized aliens may be, and
in certain circumstances must be, sus-pended or revoked. The law
also requires that all Arizona employers use a federal electronic
verification system to confirm that the workers they employ are
legally authorized workers. The question presented is whether
federal immigration law preempts those provisions of Arizona law.
Because we conclude that the State’s licensing provisions fall
squarely within the federal statute’s savings clause and that the
Arizona regulation does not otherwise conflict with federal law, we
hold that the Arizona law is not preempted.

															I

															A

															   In 1952, Congress enacted the
Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8
U. S. C. §1101 et seq . That statute established a
“comprehensive federal statutory scheme for regulation of
immigration and naturalization” and set “the terms and conditions
of admission to the country and the subsequent treatment of aliens
lawfully in the country.” De Canas v. Bica , 424 U. S. 351 , 353, 359 (1976).

															   In the years following the
enactment of the INA, several States took action to prohibit the
employment of indi-viduals living within state borders who were not
lawful residents of the United States. For example, in 1971
Cali-fornia passed a law providing that “[n]o employer shall
knowingly employ an alien who is not entitled to lawful residence
in the United States if such employment would have an adverse
effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442,
§1(a). The California law imposed fines ranging from $200 to $500
for each violation of this prohibition. §1(b). At least 11 other
States enacted provisions during that same time period proscribing
the employment of unauthorized aliens.[ Footnote 1 ]

															   We first addressed the interaction of federal
immigration law and state laws dealing with the employment of
unauthorized aliens in De Canas , 424 U. S. 351 . In that case, we
recognized that the “[p]ower to regulate immi-gration is
unquestionably … a federal power.” Id., at 354. At the
same time, however, we noted that the “States possess broad
authority under their police powers to regulate the employment
relationship to protect workers within the State,” id., at
356, that “prohibit[ing] the knowing employment … of persons not
entitled to lawful residence in the United States, let alone to
work here, is certainly within the mainstream of [the State’s]
police power,” ibid. , and that the Federal Government had
“at best” expressed “a peripheral concern with [the] employment of
illegal entrants” at that point in time, id., at 360. As a
result, we declined to hold that a state law assessing civil fines
for the employment of unauthorized aliens was preempted by federal
immigration law.

															   Ten years after De Canas , Congress
enacted the Immigration Reform and Control Act (IRCA), 100 Stat.
3359. IRCA makes it “unlawful for a person or other entity … 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.”
8 U. S. C. §1324a(a)(1)(A). IRCA defines an “unauthorized
alien” as an alien who is not “lawfully admitted for permanent
residence” or not otherwise authorized by the Attorney General to
be employed in the United States. §1324a(h)(3).

															   To facilitate compliance with this
prohibition, IRCA requires that employers review documents
establishing an employee’s eligibility for employment. §1324a(b).
An employer can confirm an employee’s authorization to work by
reviewing the employee’s United States passport, resident alien
card, alien registration card, or other document approved by the
Attorney General; or by reviewing a combination of other documents
such as a driver’s license and social security card.
§1324a(b)(1)(B)–(D). The employer must attest under penalty of
perjury on Department of Homeland Security Form I–9 that he “has
verified that the individual is not an unauthorized alien” by
reviewing these documents. §1324a(b)(1)(A). The form I–9 itself
“and any information contained in or appended to [it] … may not be
used for purposes other than for enforcement of” IRCA and other
specified provisions of federal law. §1324a(b)(5).

															   Employers that violate IRCA’s strictures may
be subjected to both civil and criminal sanctions. Immigration and
Customs Enforcement, an entity within the Department of Homeland
Security, is authorized to bring charges against a noncompliant
employer under §1324a(e). Depending on the circumstances of the
violation, a civil fine ranging from $250 to $16,000 per
unauthorized worker may be imposed. See §1324a(e)(4)(A); 73 Fed.
Reg. 10136 (2008). Employers that engage in a pattern or practice
of violating IRCA’s requirements can be criminally prosecuted,
fined, and imprisoned for up to six months. §1324a(f)(1). The Act
also imposes fines for engaging in “unfair immigration-related
employment practice[s]” such as discriminating on the basis of
citizenship or national origin. §1324b(a)(1); see §1324b(g)(2)(B).
Good-faith com-pliance with IRCA’s I–9 document review requirements
provides an employer with an affirmative defense if charged with a
§1324a violation. §1324a(a)(3).

															   IRCA also restricts the ability of States to
combat employment of unauthorized workers. The Act expressly
preempts “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.” §1324a(h)(2). Under that provision, state
laws imposing civil fines for the employment of unauthorized
workers like the one we upheld in De Canas are now
expressly preempted.

															   In 1996, in an attempt to improve IRCA’s
employment verification system, Congress created three experimental
complements to the I–9 process as part of the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat.
3009–655, note following 8 U. S. C. §1324a. Arizona
Contractors Assn., Inc. v. Candelaria , 534
F. Supp. 2d 1036, 1042 (Ariz. 2008); see 8 U. S. C.
§1324a(d). Only one of those programs—E-Verify—remains in operation
today. Originally known as the “Basic Pilot Program,” E-Verify “is
an internet-based system that allows an employer to verify an
employee’s work-authorization status.” Chicanos Por La Causa,
Inc. v. Napolitano , 558 F. 3d 856, 862 (CA9
2009). An employer submits a request to the E-Verify system based
on information that the employee provides similar to that used in
the I–9 process. In response to that request, the employer receives
either a confirmation or a tentative nonconfirmation of the
employee’s authorization to work. An employee may challenge a
nonconfirmation report. If the employee does not do so, or if his
challenge is unsuccessful, his employment must be terminated or the
Federal Government must be informed. See ibid. In the absence of a prior violation of certain
federal laws, IIRIRA prohibits the Secretary of Homeland Security
from “requir[ing] any person or … entity” outside the Federal
Government “to participate in” the E-Verify program, §402(a), (e),
110 Stat. 3009–656 to 3009–658. To promote use of the program,
however, the statute provides that any employer that utilizes
E-Verify “and obtains confirmation of identity and employment
eligibility in compliance with the terms and conditions of the
program … has established a rebuttable presumption” that it has not
violated IRCA’s unauthorized alien employment prohibition,
§402(b)(1), id. , at 3009–656 to 3009–657.

															B

															   Acting against this statutory and
historical background, several States have recently enacted laws
attempting to impose sanctions for the employment of unauthorized
aliens through, among other things, “licensing and similar laws,” 8
U. S. C. §1324a(h)(2).[ Footnote 2 ] Arizona is one of them. The Legal Arizona
Workers Act of 2007 allows Arizona courts to suspend or revoke the
licenses necessary to do business in the State if an employer
knowingly or intentionally employs an unauthorized alien. Ariz.
Rev. Stat. Ann. §§23–211, 212, 212.01 (West Supp. 2010) (citing 8
U. S. C. §1324a).

															   Under the Arizona law, if an
individual files a complaint alleging that an employer has hired an
unauthorized alien, the attorney general or the county attorney
first verifies the employee’s work authorization with the Federal
Government pursuant to 8 U. S. C. §1373(c). Ariz. Rev. Stat.
Ann. §23–212(B). Section 1373(c) provides that the Federal
Government “shall respond to an inquiry by a” State “seeking to
verify or ascertain the citizenship or immigration status of any
individual … by providing the requested verification or status
information.” The Arizona law expressly prohibits state, county, or
local officials from attempting “to independently make a final
determination on whether an alien is authorized to work in the
United States.” Ariz. Rev. Stat. Ann. §23–212(B) . If the
§1373(c) inquiry reveals that a worker is an unauthorized alien,
the attorney general or the county attorney must notify United
States Immigration and Customs Enforcement offi-cials, notify local
law enforcement, and bring an action against the employer.
§23–212(C)(1)–(3), (D).

															   When a complaint is brought against an
employer un-der Arizona law, “the court shall consider only the
fed- eral government’s determination pursuant to” 8 U. S. C.
§1373(c) in “determining whether an employee is an unauthorized
alien.” §23–212(H). Good-faith compliance with the federal I–9
process provides employers prosecuted by the State with an
affirmative defense. §23–212(J).

															   A first instance of “knowingly employ[ing] an
unauthorized alien” requires that the court order the employer to
terminate the employment of all unauthorized aliens and file
quarterly reports on all new hires for a probationary period of
three years. §23–212(A), (F)(1)(a)–(b). The court may also “order
the appropriate agencies to suspend all licenses … that are held by
the employer for [a period] not to exceed ten business days.”
§23–212(F)(1)(d). A second knowing violation requires that the
adjudicating court “permanently revoke all licenses that are held
by the employer specific to the business location where the
unauthorized alien performed work.” §23–212(F)(2).

															   For a first intentional violation, the court
must order the employer to terminate the employment of all
unauthorized aliens and file quarterly reports on all new hires for
a probationary period of five years. §23–212.01(A), (F)(1)(a)–(b).
The court must also suspend all the employer’s licenses for a
minimum of 10 days. §23–212.01(F)(1)(c). A second intentional
violation requires the permanent revocation of all business
licenses. §23–212.01(F)(2).

															   With respect to both knowing and intentional
violations, a violation qualifies as a “second violation” only if
it oc-curs at the same business location as the first violation,
during the time that the employer is already on probation for a
violation at that location. §23–212(F)(3)(a)–(b);
§23–212.01(F)(3)(a)–(b).

															   The Arizona law also requires that “every
employer, after hiring an employee, shall verify the employment
eligibility of the employee” by using E-Verify.
§23–214(A).[ Footnote 3 ]
“[P]roof of verifying the employment authorization of an employee
through the e-verify program creates a rebuttable presumption that
an employer did not knowingly employ an unauthorized alien.”
§23–212(I).

															C

															   The Chamber of Commerce of the
United States and various business and civil rights organizations
(collec-tively Chamber of Commerce or Chamber) filed a
pre-enforcement suit in federal court against those charged with
administering the Arizona law: more than a dozen Arizona county
attorneys, the Governor of Arizona, the Arizona attorney general,
the Arizona registrar of contractors, and the director of the
Arizona Department of Revenue (collectively Arizona).[ Footnote 4 ] The Chamber argued that the
Arizona law’s provisions allowing the suspension and revocation of
business licenses for employing unauthorized aliens were both
expressly and impliedly preempted by federal immigration law, and
that the mandatory use of E-Verify was impliedly preempted.

															   The District Court held that
Arizona’s law was not pre-empted. 534 F. Supp. 2d 1036. It
found that the plain language of IRCA’s preemption clause did not
preempt the Arizona law because the state law does no more than
impose licensing conditions on businesses operating within the
State. Id., at 1045–1046. With respect to E-Verify, the
court concluded that although Congress had made the program
voluntary at the national level, it had expressed no intent to
prevent States from mandating participation. Id., at
1055–1057. The Court of Appeals affirmed the District Court in all
respects, holding that Arizona’s law was a “ ‘licensing and
similar law[]’ ” falling within IRCA’s savings clause and that
none of the state law’s challenged provisions was “expressly or
impliedly preempted by federal policy.” 558 F. 3d, at 860,
861, 866.

															   We granted certiorari. 561 U. S. ___
(2010).

															II

															   The Chamber of Commerce argues
that Arizona’s law is expressly preempted by IRCA’s text and
impliedly pre-empted because it conflicts with federal law. We
address each of the Chamber’s arguments in turn.

															A

															   When a federal law contains an
express preemption clause, we “focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress’
pre-emptive intent.” CSX Transp., Inc. v. Easterwood , 507 U. S. 658 , 664
(1993).

															   IRCA expressly preempts States
from imposing “civil or criminal sanctions” on those who employ
unauthorized aliens, “other than through licensing and similar
laws.” 8 U. S. C. §1324a(h)(2). The Arizona law, on its face,
purports to impose sanctions through licensing laws. The state law
authorizes state courts to suspend or revoke an employer’s business
licenses if that employer knowingly or intentionally employs an
unauthorized alien. Ariz. Rev. Stat. Ann. §23–212(A) and (F);
§23–212.01(A) and (F). The Arizona law defines “license” as “any
agency permit, certificate, approval, registration, charter or
similar form of authorization that is required by law and that is
issued by any agency for the purposes of operating a business in”
the State. §23–211(9)(a). That definition largely parrots the
definition of “license” that Congress codified in the
Administrative Procedure Act. See 5 U. S. C. §551(8)
(“ ‘license’ includes the whole or a part of an agency permit,
certificate, approval, registration, charter, membership, statutory
exemption or other form of permission”).

															   Apart from that general definition, the
Arizona law specifically includes within its definition of
“license” docu-ments such as articles of incorporation,
certificates of partnership, and grants of authority to foreign
companies to transact business in the State. Ariz. Rev. Stat. Ann.
§23–211(9). These examples have clear counterparts in the APA
definition just quoted. See 5 U. S. C. §551(8) (defining
“license” as including a “registration” or “charter”).

															   A license is “a right or permission granted in
accordance with law … to engage in some business or occupation, to
do some act, or to engage in some transaction which but for such
license would be unlawful.” Webster’s Third New International
Dictionary 1304 (2002). Articles of incorporation and certificates
of partnership allow the formation of legal entities and permit
them as such to engage in business and transactions “which but for
such” authorization “would be unlawful.” Ibid. ; see Ariz.
Rev. Stat. Ann. §§10–302, 302(11) (West 2004) (articles of
incorporation allow a corporation “to carry out its business and
affairs” and to “[c]onduct its business”); see also §10–202(A)(3)
(West Supp. 2010). As for state-issued authorizations for foreign
businesses to operate within a State, we have re-peatedly referred
to those as “licenses.” See, e.g., Heli-copteros
Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , 417
(1984); G. D. Searle & Co. v. Cohn , 455 U. S. 404 , 413, n. 8
(1982); Rosenberg Bros. & Co. v. Curtis Brown
Co. , 260 U. S.
516 , 518 (1923). Moreover, even if a law regulating articles of
incorporation, partnership certificates, and the like is not itself
a “licensing law,” it is at the very least “similar” to a licensing
law, and therefore comfortably within the savings clause. 8 U.
S. C. §1324a(h)(2).[ Footnote
5 ]

															   The Chamber and the United States as amicus argue that the Arizona law is not a “licensing” law
because it operates only to suspend and revoke licenses rather than
to grant them. Again, this construction of the term runs contrary
to the definition that Congress itself has codified. See 5 U.
S. C. §551(9) (“ ‘licensing’ includes agency process
respecting the grant, renewal, denial, revocation , sus-pension , annulment , withdrawal ,
limitation, amendment, modification, or conditioning of a license”
(emphasis added)). It is also contrary to common sense. There is no
basis in law, fact, or logic for deeming a law that grants licenses
a licensing law, but a law that suspends or revokes those very
licenses something else altogether.

															   The Chamber also submits that the manner in
which Congress amended a related statute when enacting IRCA
supports a narrow interpretation of the savings clause. The Migrant
and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.
S. C. §1801 et seq ., requires employers to secure a
registration certificate from the Department of Labor before
engaging in any “farm labor contracting activity.” §1811(a). Prior
to IRCA, AWPA had contained its own prohibition on hiring
unauthorized workers, with accompanying adjudication procedures.
See §1813(a); §1816(a) (1982 ed.) (repealed by IRCA, 100 Stat.
3372); §1851(a)–(b) (1982 ed.) (amended by IRCA, 100 Stat. 3372).
When Congress enacted IRCA, it repealed AWPA’s separate
unauthorized worker prohibition and eliminated the associated
adjudication process. Under the current state of the law, an AWPA
certification may be denied based on a prior IRCA violation.
§1813(a)(6) (2006 ed.). And once obtained, that certification can
be revoked because of the employment of an unauthorized alien only
following a finding of an IRCA violation. Ibid. The Chamber asserts that IRCA’s amendment of
AWPA shows that Congress meant to allow state licensing sanctions
only after a federal IRCA adjudication, just as adverse action
under AWPA can now be taken only through IRCA’s procedures. But the
text of IRCA’s savings clause says nothing about state licensing
sanctions being contingent on prior federal adjudication, or indeed
about state licensing processes at all. The simple fact that
federal law creates procedures for federal investigations and
adjudications culminating in federal civil or criminal sanctions
does not indicate that Congress intended to prevent States from
establishing their own procedures for imposing their own sanctions
through licensing. Were AWPA not amended to conform with IRCA, two
different federal agencies would be responsible for administering
two different unauthorized alien employment laws. The conforming
amendments eliminated that potential redundancy and centralized
federal adjudicatory authority. That hardly supports a conclusion
that any state licensing programs must also be contingent on the
central federal system.

															   In much the same vein, the Chamber argues that
Congress’s repeal of “AWPA’s separate prohibition concerning
unauthorized workers belies any suggestion that IRCA meant to
authorize each of the 50 States … to impose its own separate
prohibition,” and that Congress instead wanted uniformity in
immigration law enforcement. Brief for Petitioners 36. Justice
Breyer also objects to the departure from “one centralized
enforcement scheme” under federal law. Post , at 7
(dissenting opinion). But Congress expressly preserved the ability
of the States to impose their own sanctions through licensing;
that—like our federal system in general—necessarily entails the
prospect of some departure from homogeneity. And as for “separate
prohibition[s],” it is worth recalling that the Arizona licensing
law is based exclusively on the federal prohibition—a court
reviewing a complaint under the Arizona law may “consider only the
federal government’s determination” with respect to “whether an
employee is an unauthorized alien.” §23–212(H).

															   Even more boldly, the Chamber contends that
IRCA’s savings clause was intended to allow States to impose
licensing sanctions solely on AWPA-related farm contracting
licensees. AWPA specifically recognized that federal regulation of
farm contracting licensing was only “intended to supplement State
law,” 29 U. S. C. §1871, and the Chamber argues that the
purpose of IRCA’s savings clause was limited to preserving existing
state farm contractor licensing programs. But here again no such
limit is remotely discernible in the statutory text. Absent any
textual basis, we are not inclined to limit so markedly the
otherwise broad phrasing of the savings clause. See United
States v. Shreveport Grain & Elevator Co. , 287 U. S. 77 , 83
(1932) (“extrinsic aids to construction” may be used “to solve, but
not to create, an ambiguity” (emphasis and internal quotation marks
omitted)).

															   The Chamber argues that its textual and
structural arguments are bolstered by IRCA’s legislative history.
We have already concluded that Arizona’s law falls within the plain
text of IRCA’s savings clause. And, as we have said before,
Congress’s “authoritative statement is the statutory text, not the
legislative history.” Exxon Mobil Corp. v. Allapattah
Services, Inc. , 545 U. S. 546 , 568
(2005); see also Hoffman Plastic Compounds, Inc. v. NLRB , 535
U. S. 137 , 149–150, n. 4 (2002). Whatever the usefulness of
relying on legislative history materials in general, the arguments
against doing so are particularly compelling here. Beyond verbatim
recitation of the statutory text, all of the legislative history
documents related to IRCA save one fail to discuss the savings
clause at all. The Senate Judiciary Committee Report on the Senate
version of the law does not comment on it. See S. Rep. No. 99–132
(1985). Only one of the four House Reports on the law touches on
the licensing exception, see H. R. Rep. No. 99–682, pt. 1,
p. 58 (1986), and we have previously dismissed that very
report as “a rather slender reed” from “one House of a politically
divided Congress.” Hoffman , supra, at 149–150,
n. 4. And the Conference Committee Report does not discuss the
scope of IRCA’s preemption provision in any way. See H. Conf. Rep.
No. 99–1000 (1986).[ Footnote
6 ]

															   IRCA expressly preempts some state powers
dealing with the employment of unauthorized aliens and it expressly
preserves others. We hold 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.

															B

															   As an alternative to its express
preemption argument, the Chamber contends that Arizona’s law is
impliedly preempted because it conflicts with federal law. At its
broadest level, the Chamber’s argument is that Congress “intended
the federal system to be exclusive,” and that any state system
therefore necessarily conflicts with federal law. Brief for
Petitioners 39. But Arizona’s procedures simply implement the
sanctions that Congress expressly allowed Arizona to pursue through
licensing laws. Given that Congress specifically preserved such
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. And here Arizona went
the extra mile in ensuring that its law closely tracks IRCA’s
provisions in all material respects. The Arizona law begins by
adopting the federal definition of who qualifies as an
“unauthorized alien.” Compare 8 U. S. C. §1324a(h)(3) (an
“unauthorized alien” is an alien not “lawfully admitted for
permanent residence” or not otherwise authorized by federal law to
be employed) with Ariz. Rev. Stat. Ann. §23–211(11) (adopting the
federal definition of “unauthorized alien”); see De Canas ,
424 U. S., at 363 (finding no preemption of state law that operates
“only with respect to individuals whom the Federal Government has
already declared cannot work in this country”).

															   Not only that, the Arizona law expressly
provides that state investigators must verify the work
authorization of an allegedly unauthorized alien with the Federal
Government, and “shall not attempt to independently make a final
determination on whether an alien is authorized to work in the
United States.” §23–212(B). What is more, a state court “shall
consider only the federal government’s determination” when
deciding “whether an employee is an unauthorized alien.” §23–212(H)
(emphasis added). As a result, there can by definition be no
conflict between state and federal law as to worker authorization,
either at the investigatory or adjudicatory stage.[ Footnote 7 ]

															   The federal determination on which the State
must rely is provided under 8 U. S. C. §1373(c). See supra , at 6–7. That provision requires the Federal
Government to “verify or ascertain” an individual’s “citizenship or
immigration status” in response to a state request. Justice Breyer
is concerned that this information “says nothing about work
authorization.” Post , at 9 (dissenting opinion). Justice
Sotomayor shares that concern. Post , at 10 (dissenting
opinion). But if a §1373(c) inquiry reveals that someone is a
United States citizen, that certainly answers the question
whether that individual is authorized to work. The same would be
true if the response to a §1373(c) query disclosed that the
individual was a lawful permanent resident alien or, on the other
hand, had been ordered removed. In any event, if the information
provided under §1373(c) does not confirm that an employee is an
unauthorized alien, then the State cannot prove its case. See Brief
for Respondents 50, n. 10 (“if the information from the
federal authorities does not establish that a person is an
unauthorized alien, it means that the county attorney cannot
satisfy his burden of proof in an enforcement action”); Tr. of Oral
Arg. 47.

															   From this basic starting point, the Arizona
law continues to trace the federal law. Both the state and federal
law prohibit “knowingly” employing an unauthorized alien. Compare 8
U. S. C. §1324a(a)(1)(A) with Ariz. Rev. Stat. Ann.
§23–212(A).[ Footnote 8 ] But the
state law does not stop there in guarding against any conflict with
the federal law. The Arizona law provides that “ ‘[k]nowingly
employ an unauthorized alien’ means the actions described in 8
United States Code §1324a,” and that the “term shall be interpreted
consistently with 8 United States Code §1324a and any applicable
federal rules and regulations.” §23–211(8).

															   The Arizona law provides employers with the
same af-firmative defense for good-faith compliance with the I–9
process as does the federal law. Compare 8 U. S. C.
§1324a(a)(3) (“A person or entity that establishes that it has
complied in good faith with the [employment verification]
requirements of [§1324a(b)] with respect to hiring … an alien … has
established an affirmative defense that the person or entity has
not violated” the law) with Ariz. Rev. Stat. Ann. §23–212(J) (“an
employer that establishes that it has complied in good faith with
the requirements of 8 United States Code section 1324a(b)
establishes an affirmative defense that the employer did not
knowingly employ an unauthorized alien”).[ Footnote 9 ] And both the federal and Arizona law accord
employers a rebuttable presumption of compliance with the law when
they use E-Verify to validate a finding of employment eligibility.
Compare IIRIRA §402(b), 110 Stat. 3009–656 to 3009–657 with Ariz.
Rev. Stat. Ann. §23–212(I). Apart from the mechanics of the
Arizona law, the Chamber argues more generally that the law is
preempted because it upsets the balance that Congress sought to
strike when enacting IRCA. In the Chamber’s view, IRCA reflects
Congress’s careful balancing of several policy
considerations—deterring unauthorized alien employment, avoiding
burdens on employers, protecting employee privacy, and guarding
against employment discrimination. According to the Chamber, the
harshness of Arizona’s law “ ‘exert[s] an extraneous pull on
the scheme established by Congress’ ” that impermissibly
upsets that balance. Brief for Petitioners 45 (quoting Buckman
Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 353 (2001)); see Brief
for Petitioners 42–45; Reply Brief for Petitioners
20.

															   As an initial matter, the cases on which the
Chamber relies in advancing this argument all involve uniquely
federal areas of regulation. See American Ins. Assn. v. Garamendi , 539 U. S. 396 , 401,
405–406 (2003) (presidential conduct of foreign policy); Crosby v. National Foreign Trade Council , 530 U. S. 363 ,
373–374 (2000) (foreign affairs power); Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 352 (2001) (fraud on a
federal agency); United States v. Locke , 529 U. S. 89 , 97, 99
(2000) (regulation of maritime vessels); Bonito Boats,
Inc. v. Thunder Craft Boats, Inc. , 489 U. S. 141 , 143–144
(1989) (patent law). Regulating in-state businesses through
licensing laws has never been considered such an area of dominant
federal concern.

															   Furthermore, those cases all concern state
actions that directly interfered with the operation of the federal
program. In Buckman , for example, the Court determined
that allowing a state tort action would cause applicants before a
federal agency “to submit a deluge of information that the [agency]
neither wants nor needs, resulting in additional burdens on the
[agency’s] evaluation of an application,” and harmful delays in the
agency process. 531 U. S., at 351. In Garamendi , a state
law imposing sanctions on insurance companies directly “thwart[ed]
the [Federal] Government’s policy of repose” for insurance
companies that participated in an international program negotiated
by the President. 539 U. S., at 425. Crosby involved a
state law imposing sanctions on any entity do-ing business with
Burma, a law that left the President with “less to offer and less
economic and diplomatic leverage” in exercising his foreign affairs
powers. 530 U. S., at 377. The state law in Bonito Boats extended patent-like protection “for subject matter for which
patent protection has been denied or has expired,” “thus eroding
the general rule of free competition upon which the attractiveness
of the federal patent bargain depends.” 489 U. S., at 159, 161. And
the portions of Locke on which the Chamber relies involved
state efforts “to impose additional unique substantive regulation
on the at-sea conduct of vessels”—“an area where the federal
interest has been manifest since the beginning of our Republic.”
529 U. S., at 106, 99. There is no similar interference with the
federal program in this case; that program operates unimpeded by
the state law.

															   License suspension and revocation are
significant sanctions. But they are typical attributes of a
licensing regime. Numerous Arizona laws provide for the suspension
or revocation of licenses for failing to comply with specified
state laws. See, e.g., Ariz. Rev. Stat. Ann.
§§5–108.05(D), 32–852.01(L), 32–1154(B), 32–1451(M), 41–2186 (West
2002). Federal law recognizes that the authority to license
includes the authority to suspend, revoke, annul, or withdraw a
license. See 5 U. S. C. §551(9). Indeed, AWPA itself—on which the
Chamber so heavily relies—provides that AWPA “certificates of
registration” can be suspended or revoked for employing an
unauthorized alien. 29 U. S. C. §1813(a)(6). It makes little
sense to preserve state authority to impose sanctions through
licensing, but not allow States to revoke licenses when appropriate
as one of those sanctions.

															   The Chamber and Justice Breyer assert that
employers will err on the side of discrimination rather than risk
the “ ‘business death penalty’ ” by “hiring unauthorized
workers.” Post , at 6–7 (dissenting opinion); see Brief for
Petitioners 3, 35. That is not the choice. License termination is
not an available sanction simply for “hiring unauthorized workers.”
Only far more egregious violations of the law trigger that
consequence. The Arizona law covers only knowing or intentional
violations. The law’s permanent licensing sanctions do not come
into play until a second knowing or intentional violation at the
same business location, and only if the second violation occurs
while the employer is still on probation for the first. These
limits ensure that licensing sanctions are imposed only when an
employer’s conduct fully justifies them. An employer acting in good
faith need have no fear of the sanctions.

															   As the Chamber points out, IRCA has its own
anti-discrimination provisions, see 8 U. S. C. §1324b(a)(1),
(g)(1)(B) (imposing sanctions for discrimination “against any
individual … with respect to the hiring … or the discharging of the
individual from employment”); Arizona law certainly does nothing to
displace those. Other federal laws, and Arizona anti-discrimination
laws, provide further protection against employment
discrimination—and strong incentive for employers not to
discriminate. See, e.g., 42 U. S. C. §2000e–2(a)
(prohibiting discrimination based on “race, color, religion, sex,
or national origin”); Ariz. Rev. Stat. Ann. §41–1463(B)(1) (West
Supp. 2010) (prohibiting employment discrimination based on “race,
color, religion, sex, age, or national origin”).

															   All that is required to avoid sanctions under
the Legal Arizona Workers Act is to refrain from knowingly or
intentionally violating the employment law. Employers enjoy safe
harbors from liability when they use the I–9 system and E-Verify—as
Arizona law requires them to do. The most rational path for
employers is to obey the law—both the law barring the employment of
unauthorized aliens and the law prohibiting discrimination—and
there is no reason to suppose that Arizona employers will choose
not to do so.

															   As with any piece of legislation, Congress did
indeed seek to strike a balance among a variety of interests when
it enacted IRCA. Part of that balance, however, involved allocating
authority between the Federal Government and the States. The
principle that Congress adopted in doing so was not that the
Federal Government can impose large sanctions, and the States only
small ones. IRCA instead preserved state authority over a
particular category of sanctions—those imposed “through licensing
and similar laws.”

															   Of course Arizona hopes that its law will
result in more effective enforcement of the prohibition on
employing unauthorized aliens. But in preserving to the States the
authority to impose sanctions through licensing laws, Congress did
not intend to preserve only those state laws that would have no
effect. The balancing process that culminated in IRCA resulted in a
ban on hiring unauthorized aliens, and the state law here simply
seeks to enforce that ban.

															   Implied preemption analysis does not justify a
“freewheeling judicial inquiry into whether a state statute is in
tension with federal objectives”; such an endeavor “would undercut
the principle that it is Congress rather than the courts that
preempts state law.” Gade v. National Solid Wastes
Management Assn. , 505 U. S. 88 , 111 (1992)
(Kennedy, J., concurring in part and concurring in judgment); see Silkwood v. Kerr-McGee Corp. , 464 U. S. 238 , 256
(1984). Our precedents “establish that a high threshold must be met
if a state law is to be pre-empted for conflicting with the
purposes of a federal Act.” Gade , supra , at 110.
That threshold is not met here.

															III

															   The Chamber also argues that
Arizona’s requirement that employers use the federal E-Verify
system to determine whether an employee is authorized to work is
im-pliedly preempted. In the Chamber’s view, “Congress wanted to
develop a reliable and non-burdensome system of work-authorization
verification” that could serve as an alternative to the I–9
procedures, and the “mandatory use of E-Verify impedes that
purpose.” 558 F. 3d, at 866.

															A

															   We begin again with the relevant
text. The provision of IIRIRA setting up the program that includes
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 other entity [outside of the Federal Government] to
participate in a pilot program” such as E-Verify. IIRIRA §402(a),
110 Stat. 3009–656. That provision limits what the Secretary of
Homeland Security may do—nothing more.

															   The Federal Government recently
argued just that, and approvingly referenced Arizona’s E-Verify law
when doing so. In 2008, an Executive Order mandated that executive
agencies require federal contractors to use E-Verify as a condition
of receiving a federal contract. See Exec. Order No. 13465, 73 Fed.
Reg. 33286 (2008). When that Order and its implementing regulation
were challenged, the Government pointed to Arizona’s E-Verify
mandate as an example of a permissible use of that system: “[T]he
State of Arizona has required all public and private employers in
that State to use E-Verify … . This is permissible because the State of Arizona is not the Secretary of Homeland
Security.” Defendants’ Reply Memorandum in Support of Their Motion
for Summary Judgment in No. 8:08–cv–03444 (D Md.), p. 7
(emphasis added), appeal dism’d, No. 09–2006 (CA4, Dec. 14,
2009).

															   Arizona’s use of E-Verify does not conflict
with the federal scheme. The Arizona law requires that “every
employer, after hiring an employee, shall verify the employment
eligibility of the employee” through E-Verify. Ariz. Rev. Stat.
Ann. §23–214(A) (West Supp. 2010). That requirement is entirely
consistent with the federal law. And the consequences of not using
E-Verify under the Arizona law are the same as the consequences of
not using the system under federal law. In both instances, the only
result is that the employer forfeits the otherwise available
rebuttable presumption that it complied with the law. Compare
IIRIRA §402(b)(1) with Ariz. Rev. Stat. Ann. §23–212(I).[ Footnote 10 ]

															B

															   Congress’s objective in
authorizing the development of E-Verify was to ensure reliability
in employment author-ization verification, combat counterfeiting of
identity documents, and protect employee privacy. 8 U. S. C.
§1324a(d)(2). Arizona’s requirement that employers operating within
its borders use E-Verify in no way obstructs achieving those
aims.

															   In fact, the Federal Government
has consistently expanded and encouraged the use of E-Verify. When
E-Verify was created in 1996, it was meant to last just four years
and it was made available in only six States. IIRIRA §401(b) and
(c)(1), 110 Stat. 3009–655 to 3009–656. Congress since has acted to
extend the E-Verify program’s existence on four separate occasions,
the most recent of which ensures the program’s vitality through
2012.[ Footnote 11 ] And in
2003 Congress directed the Secretary of Homeland Security to make
E-Verify available in all 50 States. 117 Stat. 1944; IIRIRA
§401(c)(1), 110 Stat. 3009–656. The Department of Homeland Security
has even used “billboard and radio advertisements … to encour- age
greater participation” in the E-Verify program. 534 F. Supp.
2d, at 1056.

															   The Chamber contends that “if the 49 other
States followed Arizona’s lead, the state-mandated drain on federal
resources would overwhelm the federal system and render it
completely ineffective, thereby defeating Congress’s primary
objective in establishing E-Verify.” Brief for Petitioners 50–51.
Whatever the legal significance of that argument, the United States
does not agree with the factual premise. According to the
Department of Homeland Security, “the E-Verify system can
accommodate the increased use that the Arizona statute and existing
similar laws would create.” Brief for United States as Amicus
Curiae 34. And the United States notes that “[t]he government
continues to encourage more employers to participate” in E-Verify. Id., at 31.

															   The Chamber has reservations about E-Verify’s
reliability, see Brief for Petitioners 49, n. 27, but again the
United States disagrees. The Federal Government reports that
“E-Verify’s successful track record . . . is borne out by findings
documenting the system’s accuracy and participants’ satisfaction.”
Brief for United States as Amicus Curiae 31. Indeed,
according to the Government, the program is “the best means
available to determine the employment eligibility of new hires.” U.
S. Dept. of Homeland Security, U. S. Citizenship and Immigration
Services, E-Verify User Manual for Employers 4 (Sept.
2010).[ Footnote 12 ]

															*  *  *

															   IRCA expressly reserves to the
States the authority to impose sanctions on employers hiring
unauthorized workers, through licensing and similar laws. In
exercising that authority, Arizona has taken the route least likely
to cause tension with federal law. It uses the Federal Government’s
own definition of “unauthorized alien,” it relies solely on the
Federal Government’s own determination of who is an unauthorized
alien, and it requires Arizona employers to use the Federal
Government’s own system for checking employee status. If even this
gives rise to impermissible conflicts with federal law, then there
really is no way for the State to implement licensing sanctions,
contrary to the express terms of the savings clause.

															   Because Arizona’s unauthorized
alien employment law fits within the confines of IRCA’s savings
clause and does not conflict with federal immigration law, the
judgment of the United States Court of Appeals for the Ninth
Circuit is affirmed.

															It is so ordered.

															   Justice Kagan took no part in the
consideration or decision of this case.

															*Justice Thomas joins Parts I, II–A, and III–A of
this opinion and concurs in the judgment. Footnote 1 See Conn. Gen. Stat. §31–51k (1973) (enacted
1972); Del. Code Ann., Tit. 19, §705 (Cum. Supp. 1978) (enacted
1976); Fla. Stat. §448.09 (1981) (enacted 1977); Kan. Stat. Ann.
§21–4409 (1981) (enacted 1973); 1985 La. Acts p. 1894; 1977
Me. Acts p. 171; 1976 Mass. Acts p. 641; Mont. Code Ann.
§41–121 (1977 Cum. Supp.); N. H. Rev. Stat. Ann. §275–A:4–a
(1986 Cum. Supp.) (enacted 1976); 1977 Vt. Laws p. 320; 1977
Va. Acts ch. 438. Footnote 2 See, e.g., Colo. Rev. Stat. Ann.
§8–17.5–102 (2008); Miss. Code Ann. §71–11–3(7)(e) (Supp. 2010);
Mo. Rev. Stat. §§285–525, 285–535 (2009 Cum. Supp.); Pa. Stat.
Ann., Tit. 73, §820.311 (Purdon Supp. 2010); S. C. Code Ann.
§41–8–50(D)(2) (Supp. 2010); Tenn. Code Ann. §50–1–103(d) (2008);
Va. Code Ann. §2.2–4311.1 (Lexis 2008); W. Va. Code Ann.
§21–1B–7 (Lexis Supp. 2010). Footnote 3 Several States have passed statutes mandating
the use of E-Verify. See, e.g., Miss. Code Ann.
§71–11–3(3)(d), (4)(b)(i) (Supp. 2010); S. C. Code Ann.
§41–8–20(B)–(C) (Supp. 2010); Utah Code Ann. §13–47–201(1) (Lexis
Supp. 2010); Va. Code Ann. §40.1–11.2 (Lexis Supp. 2010). Footnote 4 No suits had been brought under the Arizona
law when the complaint in this case was filed. As of the date that
Arizona submitted its merits brief to this Court only three
enforcement actions had been pursued against Arizona employers. See Arizona v. Waterworld Ltd. Partnership , No.
CV2009–038848 (Maricopa Cty. Super. Ct., filed Dec. 21, 2009)
(resolved by consent judgment); Arizona v. Danny’s
Subway Inc ., No. CV2010–005886 (Maricopa Cty. Super. Ct.,
filed Mar. 9, 2010) (resolved by consent decree); Arizona v. Scottsdale Art Factory, LLC , No. CV2009–036359
(Maricopa Cty. Super. Ct., filed Nov. 18, 2009) (pending). Footnote 5 Justice Breyer recognizes that Arizona’s
definition of the word “license” comports with dictionaries’
treatment of the term, but argues that “license” must be read in a
more restricted way so as not to include things such as “marriage
licenses” and “dog licens[es].” Post , at 2, 12 (dissenting
opinion). Luckily, we need not address such fanciful hypotheticals;
Arizona limits its definition of “license” to those state
per-missions issued “for the purposes of operating a business” in
the State. Ariz. Rev. Stat. Ann. §23–211(9)(a) (West Supp.
2010).

															Justice Breyer’s primary concern appears to be that state
permissions such as articles of incorporation and partnership
certificates are treated as “licensing and similar laws.” Because
myriad other licenses are required to operate a business, that
concern is largely academic. See §42–5005(A) (West 2006)
(Corporations that receive “gross proceeds of sales or gross income
upon which a privilege tax is imposed … shall make application to
the department for a privilege license.” Such a corporation “shall
not engage or continue in business until the [corporation] has
obtained a privilege license.”). Suspending or revoking an
employer’s articles of incorporation will often be entirely
redundant. See §§42–5010, 5061–5076 (West 2006 and West Supp. 2010)
(describing when transaction privilege tax licenses are
required). Footnote 6 Justice Breyer poses several rhetorical
questions challenging our reading of IRCA and then goes on to
propose two seemingly alternative views of the phrase “licensing
and similar laws”—that it was meant to refer to “employment-related
licensing systems,” post , at 11 (dissenting opinion)
(emphasis deleted), or, even more narrowly, to “the licensing of
firms in the business of recruiting or referring workers for
employment, such as … state agricultural labor contractor licensing
schemes,” post , at 13. If we are asking questions, a more
telling one may be why, if Congress had intended such limited
exceptions to its prohibition on state sanctions, it did not simply
say so, instead of excepting “licensing and similar laws”
generally?

															Justice Sotomayor takes a different tack. Invoking arguments
that resemble those found in our implied preemption cases, she
concludes that the Arizona law “falls outside” the savings clause
and is expressly preempted because it allows “state courts to
determine whether a person has employed an unauthorized alien.” Post , at 2 (dissenting opinion). While Justice Breyer
would add language to the statute narrowly limiting the phrase
“licensing and similar laws” to specific types of licenses, Justice
Sotomayor creates an entirely new statutory requirement: She would
allow States to impose sanctions through “licensing and similar
laws” only after a federal adjudication. Such a requirement is
found nowhere in the text, and Justice Sotomayor does not even
attempt to link it to a specific textual provision.

															It should not be surprising that the two dissents have sharply
different views on how to read the statute. That is the sort of
thing that can happen when statutory analysis is so untethered from
the text. Footnote 7 After specifying that a state court may consider “only”
the federal determination, the Arizona law goes on to provide that
the federal determination is “a rebuttable presumption of the
employee’s lawful status,” Ariz. Rev. Stat. Ann. §23–212(H) (West
Supp. 2010). Arizona explains that this provision does not permit
the State to establish unlawful status apart from the federal
determination—the provision could hardly do that, given the
foregoing. It instead operates to “ensur[e] that the employer has an opportunity to rebut the evidence
presented to establish a worker’s unlawful status.” Brief for
Respondents 49 (emphasis added). Only in that sense is the federal
determination a “rebuttable presumption.” See Tr. of Oral Arg.
46–47. Giving an employer a chance to show that it did not break
the state law certainly does not place the Arizona regime in
conflict with federal law. Footnote 8 State law also prohibits “intentionally”
employing an unauthorized alien, §23–212.01(A), a more severe
violation of the law. The Chamber does not suggest that this
prohibition is any more problematic than the prohibition on
“knowingly” employing an unauthorized alien. Footnote 9 The Chamber contends that the Arizona law
conflicts with federal law because IRCA prohibits the use of the
I–9 form and “any information contained in or appended to [it]”
from being “used for purposes other than for enforcement of” IRCA
and other specified federal laws. 8 U. S. C. §1324a(b)(5).
That argument mistakenly assumes that an employer would need to use
the I–9 form or its supporting documents themselves to receive the
benefit of the affirmative defense in Arizona court. In fact, “[a]n
employer [could] establish good faith compliance with [the] I–9
process[] … through testimony of employees and descriptions of
office policy.” Brief for Respondents 52; see Tr. of Oral Arg.
33. Footnote 10 Arizona has since amended its statute to
include other consequences, such as the loss of state-allocated
economic development incentives. See 2008 Ariz. Sess. Laws ch. 152.
Because those provisions were not part of the statute when this
suit was brought, they are not before us and we do not address
their interaction with federal law. Footnote 11 See Basic Pilot Extension Act of 2001, §2,
115 Stat. 2407; Basic Pilot Program Extension and Expansion Act of
2003, §2, 117 Stat. 1944; Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009, Div. A, §143,
122 Stat. 3580; Department of Homeland Security Appropriations Act
of 2010, §547, 123 Stat. 2177. Footnote 12 Justice Breyer shares the Chamber’s concern
about E-Verify’s accuracy. See post , at 8, 19. Statistics
from Fiscal Year 2010, however, indicate that of the 15,640,167
E-Verify cases submitted, 98.3% were automatically confirmed as
work authorized, 0.3% were confirmed as work authorized after
contesting and resolving an initial nonconfir-mation—an avenue
available to all workers—and 1.43% were not found work authorized.
E-Verify Statistics and Reports, available at
http://www.uscis.gov/portal/site/uscis/menuitem/statistics (as
visited May 23, 2011, and available in the Clerk of Court’s case
file). As Justice Breyer notes, the initial mismatches (the 0.3%)
are frequently due to “ ‘incorrectly spelled [names] in
government databases or on identification documents.’ ” Post , at 19. Such a hazard is of course not unique to
E-Verify. Moreover, Justice Breyer’s statistical analysis
underlying his conclusion that E-Verify queries, at least
initially, wrongly “suggest[] that an individual [i]s not lawfully
employable” “ 18% of the time ” needs to be understood for
what it is. Post , at 8. If E-Verify initially indicated
that two individuals were not found work authorized, and later
revealed that one of those determinations was incorrect, Justice
Breyer would be able to exclaim that the error rate was 50% . BREYER, J., DISSENTING CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA V. WHITING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF
AMERICA, et al., PETITIONERS v. MICHAEL B. WHITING
et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[May 26, 2011]

															   Justice Breyer, with whom Justice
Ginsburg joins, dissenting.

															   The federal Immigration Reform
and Control Act of 1986 (Act or IRCA) pre-empts “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). The state law before us, the Legal Arizona
Workers Act, imposes civil sanctions upon those who employ
unauthorized aliens. See Ariz. Rev. Stat. Ann. §23–211 et
seq. (West Supp. 2010). Thus the state law falls within the
federal Act’s general pre-emption rule and is pre-empted—unless it
also falls within that rule’s exception for “licensing and similar
laws.” Unlike the Court, I do not believe the state law falls
within this exception, and I consequently would hold it
pre-empted.

															   Arizona calls its state statute a “licensing
law,” and the statute uses the word “licensing.” But the statute
strays beyond the bounds of the federal licensing exception, for it
defines “license” to include articles of incorporation and
partnership certificates, indeed virtually every state-law
authorization for any firm, corporation, or partnership to
do business in the State. §23–211(9)(a); cf. §23–211(9)(c)
(excepting professional licenses, and water and environmental
permits). Congress did not intend its “licensing” language to
create so broad an exemption, for doing so would permit States to
eviscerate the federal Act’s pre-emption provision, indeed to
subvert the Act itself, by undermining Congress’ efforts (1) to
protect lawful workers from national-origin-based discrimination
and (2) to protect lawful employers against erroneous prosecution
or punishment.

															   Dictionary definitions of the word “licensing”
are, as the majority points out, broad enough to include virtually
any permission that the State chooses to call a “license.” See ante , at 10 (relying on a dictionary and the federal
Administrative Procedure Act). But neither dictionary definitions
nor the use of the word “license” in an unrelated statute can
demonstrate what scope Congress intended the word “licensing” to
have as it used that word in this federal statute .
Instead, statutory context must ultimately determine the word’s
coverage . Context tells a driver that he cannot produce a
partnership certificate when a policeman stops the car and asks for
a license. Context tells all of us that “licensing” as used in the
Act does not include marriage licenses or the licensing of domestic
animals. And context, which includes statutory purposes, language,
and history, tells us that the federal statute’s “licensing”
language does not embrace Arizona’s overly broad definition of that
term. That is to say, ordinary corporate charters, certificates of
partnership, and the like do not fall within the scope of the word
“licensing” as used in this federal exception. See Dolan v. Postal Service , 546 U. S. 481 , 486
(2006) (statutory interpretation requires courts to “rea[d] the
whole statutory text, conside[r] the purpose and context of the
statute, and consul[t] any precedents or authorities that inform
the analysis”); United States v. Heirs of
Boisdoré , 8 How. 113, 122 (1849) (similar).

															I

															   To understand how the majority’s
interpretation of the word “licensing” subverts the Act, one must
understand the basic purposes of the pre-emption provision and of
the Act itself. Ordinarily, an express pre-emption provision in a
federal statute indicates a particular congressional interest in preventing States from enacting laws that might interfere
with Congress’ statutory objectives. See International Paper
Co. v. Ouellette , 479 U. S. 481 , 494
(1987). The majority’s reading of the provision’s “licensing”
exception, however, does the opposite. It facilitates the
creation of “ ‘obstacle[s] to the accomplishment and execution
of the full purposes and objectives of Congress.’ ” Crosby v. National Foreign Trade Council , 530 U. S. 363 ,
373 (2000) (quoting Hines v. Davidowitz , 312 U. S. 52 , 67
(1941)).

															A

															   Essentially, the federal Act
requires employers to verify the work eligibility of their
employees. And in doing so, the Act balances three competing goals.
First, it seeks to discourage American employers from hiring aliens
not authorized to work in the United States. H. R. Rep. No.
99–682, pt. 1, p. 56 (1986).

															   Second, Congress wished to avoid
“placing an undue burden on employers,” id. , at 90, and
the Act seeks to prevent the “harassment” of “innocent employers,”
S. Rep. No. 99–132, p. 35 (1985).

															   Third, the Act seeks to prevent employers from
disfavoring job applicants who appear foreign. Reiterating
longstanding antidiscrimination concerns, the House Committee
Report explained:

															“Numerous witnesses … have expressed their deep
concern that the imposition of employer sanctions will cause
extensive employment discrimination against Hispanic-Americans and
other minority group members. These witnesses are genuinely
concerned that employers, faced with the possibility of civil and
criminal penalties, will be extremely reluctant to hire persons
because of their linguistic or physical characteristics.”
H. R. Rep. No. 99–682, at 68.

															See also 42 U. S. C. §2000e–2(a)(1) (making it
an “unlawful employment practice” for an employer to discriminate
against an individual “because of such individual’s race, color,
religion, sex, or national origin”); U. S. Commission on Civil
Rights, The Tarnished Golden Door: Civil Rights Issues in
Immigration 74 (1980) (finding that “increased employment
discrimination against United States citizens and legal residents
who are racially and culturally iden-tifiable with major immigrant
groups could be the un-intended result of an employer sanctions
law”). The Committee concluded that “every effort must be taken to
minimize the potentiality of discrimination.” H. R. Rep. No.
99–682, at 68.

															B

															   The Act reconciles these
competing objectives in several ways:

															   First, the Act prohibits
employers from hiring an alien knowing that the alien is
unauthorized to work in the United States. 8 U. S. C.
§1324a(a)(1)(A).

															   Second, the Act provides an easy-to-use
mechanism that will allow employers to determine legality: the I–9
form. In completing an I–9 form, the employer certifies that he or
she has examined one or two documents ( e.g., a passport,
or a driver’s license along with a Social Security card) that tend
to confirm the worker’s identity and employability. §1324a(b)(1).
Completion of the form in good faith immunizes the employer from
liability, even if the worker turns out to be unauthorized.
§§1324a(a)(3), 1324a(b)(6).

															   A later amendment to the law also allows an
employer to verify an employee’s work eligibility through an
Internet-based federal system called E-Verify. If the em-ployer
does so, he or she will receive the benefit of a rebuttable
presumption of compliance. Illegal Immigration Re-form and
Immigrant Responsibility Act of 1996 (IIRIRA), §402(b), 110 Stat.
3009–656 to 3009–657, note following 8 U. S. C. §1324a,
p. 331 (Pilot Programs for Employment Eligibility
Confirmation).

															   Third, the Act creates a central enforcement
mechanism. The Act directs the Attorney General to establish a
single set of procedures for receiving complaints, investigating
those complaints that “have a substantial proba-bility of
validity,” and prosecuting violations. 8 U. S. C.
§1324a(e)(1). The relevant immigration officials and administrative
law judges have the power to access necessary evidence and
witnesses, §1324a(e)(2), and the employer has the right to seek
discovery from the Federal Government, 28 CFR §68.18 (2010). The
employer also has the right to administrative and judicial review
of the administrative law judge’s decision. §§68.54, 68.56.

															   Fourth, the Act makes it “an unfair
immigration-related employment practice … to discriminate against
any individual” in respect to employment “because of such
individual’s national origin.” 8 U. S. C. §1324b(a).

															   Fifth, the Act sets forth a carefully
calibrated sanction system. The penalties for hiring unauthorized
aliens are graduated to prevent the Act from unduly burdening
employers who are not serious offenders. As adjusted for inflation,
civil penalties for a first violation of the employment
restrictions range from $375–$3,200 per worker, and rise to
$3,200–$16,000 per worker for repeat offenders. §1324a(e)(4)(A); 73
Fed. Reg. 10133 (2008); see also §1324a(f) (imposing criminal fines
of not more than $3,000 per worker and imprisonment for up to six
months for “pattern or practice” violators of employment
restrictions).

															   As importantly, the Act limits or removes any
incentive to discriminate on the basis of national origin by
setting antidiscrimination fines at equivalent levels: $375–$3,200
per worker for first-time offenders, and $3,200–$16,000 per worker
for repeat offenders. §1324b(g)(2)(B)(iv); 73 Fed. Reg. 10134. The
Act then ties its unlawful employment and antidiscrimination
provisions together by providing that, should the antihiring
provisions terminate, the antidiscrimination provisions will also
terminate, §1324b(k), “the justification for them having been
removed,” H. R. Conf. Rep. No. 99–1000, p. 87 (1986).

															C

															   Now, compare and contrast
Arizona’s statute. As I have said, that statute applies to
virtually all business-related licenses, other than professional
licenses. Ariz. Rev. Stat. Ann. §23–211(9). Like the federal Act,
the state law forbids the employment of unauthorized aliens.
§§23–212(A), 23–212.01(A). It also provides employers with somewhat
similar defenses. §§23–212(I)–(J), 23–212.01(I)–(J). But thereafter
the state and federal laws part company.

															   First, the state statute
seriously threatens the federal Act’s antidiscriminatory objectives
by radically skewing the relevant penalties. For example, in the
absence of the Arizona statute, an Arizona employer who
intentionally hires an unauthorized alien for the second time would
risk a maximum penalty of $6,500. 8 U. S. C. §1324a(e)(4)
(A)(ii); 73 Fed. Reg. 10133. But the Arizona statute subjects that
same employer (in respect to the same two incidents) to mandatory,
permanent loss of the right to do business in Arizona–a penalty
that Arizona’s Governor has called the “business death penalty.”
Ariz. Rev. Stat. Ann. §23–212.01(F)(2); News Release, Governor
Signs Employer Sanctions Bill (2007), App. 399. At the same time,
the state law leaves the other side of the punishment balance—the
antidiscrimination side—unchanged.

															   This is no idle concern. Despite the federal
Act’s efforts to prevent discriminatory practices, there is
evidence that four years after it had become law, discrimination
was a serious problem. In 1990, the General Accounting Office
identified “widespread discrimination … as a result of ” the
Act. Report to the Congress, Immigration Reform: Employer Sanctions
and the Question of Discrimination 3, 37, 80. Sixteen percent of
employers in Los Angeles admitted that they applied the I–9
requirement “only to foreign-looking or foreign-sounding persons,”
and 22 percent of Texas employers reported that they “began a
practice to (1) hire only persons born in the United States or (2)
not hire persons with temporary work eligibility documents” because
of the Act. Id. , at 41–43. If even the federal Act (with
its carefully balanced penalties) can result in some employers
discriminating, how will employers behave when erring on the side
of discrimination leads only to relatively small fines, while
erring on the side of hiring unauthorized workers leads to the
“business death penalty”?

															   Second, Arizona’s law subjects lawful
employers to in-creased burdens and risks of erroneous prosecution.
In addition to the Arizona law’s severely burdensome sanctions, the
law’s procedures create enforcement risks not present in the
federal system. The federal Act creates one centralized enforcement
scheme, run by officials versed in immigration law and with access
to the relevant federal documents. The upshot is an increased
likelihood that federal officials (or the employer) will discover
whether adverse information flows from an error-prone source and
that they will proceed accordingly, thereby diminishing the
likelihood that burdensome proceedings and liability reflect
documentary mistakes.

															   Contrast the enforcement system that Arizona’s
statute creates. Any citizen of the State can complain (anonymously
or otherwise) to the state attorney general (or any county
attorney), who then “ shall investigate,” Ariz. Rev. Stat.
Ann. §23–212(B) (emphasis added), and, upon a determination that
that the “complaint is not false and frivolous … shall notify the
appropriate county attorney to bring an action,” §23–212(C)(3).
This mandatory language, the lower standard (“not frivolous”
instead of “substantial”), and the removal of immigration officials
from the state screening process (substituting numerous, elected
county attorneys) increase the likelihood that suspicious
circumstances will lead to prosecutions and liability of
employers—even where more careful investigation would have revealed
that there was no violation.

															   Again, this matter is far from trivial.
Studies of one important source of Government information—the
E-Verify system—describe how the federal administrative process corrected that system’s tentative “unemployable”
indications 18% of the time . This substantial error rate
is not a function of a small sample size. See ante , at 26,
n. 12. Rather, data from one fiscal year showed 46,921 workers
initially rejected but later “confirmed as work authorized”—all
while E-Verify was used by only a fraction of the Nation’s
employers. U. S. Citizenship and Immigration Services, Statistics
and Reports, http://
www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9a
c89243c6a7543f6d1a / ?vgnextchannel =7c579589cdb76210V
gnVCM100000b92ca60aRCRD (Feb. 4, 2011) (as visited May 18, 2011,
and available in Clerk of Court’s case file). That is to say nearly
one-in-five times that the E-Verify system suggested that an
individual was not lawfully employable ( i.e. , returned a
tentative nonconfirmation of work authorization), the system was
wrong; and subsequent review in the federal administrative process
determined as much. (And those wrongly identified were likely to be
persons of foreign, rather than domestic, origin, by a ratio of
approximately 20 to 1.) See Westat, Findings of the E-Verify
Program Evaluation xxxi, 210, 246 (Dec. 2009) (assessing data from
April to June 2008). E-Verify’s accuracy rate is even worse “in
states that require the use of E-Verify for all or some of their
employees.” Id. , at 122.

															   A related provision of the state law
aggravates the risk of erroneous prosecutions. The state statute
says that in “determining whether an employee is an unauthorized
alien, the court shall consider only the federal government’s
determination pursuant to 8 [U. S. C.] §1373(c).” Ariz. Rev.
Stat. Ann. §23–212(H). But the federal provision to which the state
law refers, 8 U. S. C. §1373(c), says only that the Federal
Government, upon a State’s request, shall verify a person’s
“citizenship or immigration status.” It says nothing about work
authorization. See post , at 7–10 (Sotomayor, J.,
dissenting). It says nothing about the source of the Federal
Government’s information. It imposes no duty upon the Federal
Government or anyone else to investigate the validity of that
information, which may falsely implicate an employer 18% of the
time.

															   So what is the employer to do? What statute
gives an employer whom the State proceeds against in state court
the right to conduct discovery against the Federal Government? The
Arizona statute, like the federal statute, says that the employer’s
use of an I–9 form provides a defense. But there is a hitch. The
federal Act says that neither the I–9 form, nor “any information
contained in or appended to” the form, “may … be used for pur-poses
other than for enforcement of this” federal Act. §1324a(b)(5). So
how can the employer present a defense, say, that the Government’s
information base is flawed? The majority takes the view that the
forms are not necessary to receive the benefit of the
affirmative defense. Ante , at 18, n. 9. But the I–9
form would surely be the employer’s most effective evidence. See
also post , at 11 (Sotomayor, J., dissenting) (suggesting
that the unavailability of I–9 forms to defend against state-court
charges means that Congress “intended no such” proceedings).

															   Nor does the Arizona statute facilitate the
presentation of a defense when it immediately follows (1) its
statement that “the court shall consider only the federal
government’s determination” when it considers “whether an employee
is an unauthorized alien” with (2) its statement that
“[t]he federal government’s determination creates a rebuttable
presumption of the employee’s lawful status.” Ariz. Rev.
Stat. Ann. §23–212(H) (emphasis added). The two statements sound as
if they mean that a Federal Government determination that the
worker is unlawful is conclusive against the employer, but
its determination that the worker’s employment is lawful is subject to rebuttal by the State. Arizona tells us that the
statute means the opposite. See ante , at 16, n. 7. But the
legal briefs of Arizona’s attorney general do not bind the state
courts. And until the matter is cleared up, employers, despite I–9
checks, despite efforts to use E-Verify, will hesitate to hire
those they fear will turn out to lack the right to work in the
United States.

															   And that is my basic point. Either directly or
through the uncertainty that it creates, the Arizona statute will
impose additional burdens upon lawful employers and consequently
lead those employers to erect ever stronger safeguards against the
hiring of unauthorized aliens—without counterbalancing protection
against unlawful discrimination. And by defining “licensing” so
broadly, by bringing nearly all businesses within its scope,
Arizona’s statute creates these effects statewide.

															   Why would Congress, after deliberately
limiting ordinary penalties to the range of a few thousand dollars
per illegal worker, want to permit far more drastic state penalties
that would directly and mandatorily destroy entire businesses? Why
would Congress, after carefully balancing sanctions to avoid
encouraging discrimination, want to allow States to destroy that
balance? Why would Congress, after creating detailed procedural
protections for employers, want to allow States to undermine them?
Why would Congress want to write into an express pre-emption
provision—a provision designed to prevent States from undercutting
federal statutory objectives—an exception that could so easily
destabilize its efforts? The answer to these questions is that
Congress would not have wanted to do any of these things. And that
fact indicates that the majority’s reading of the licensing
exception—a reading that would allow what Congress sought to
forbid—is wrong.

															II

															   The federal licensing exception
cannot apply to a state statute that, like Arizona’s statute, seeks
to bring virtually all articles of incorporation and partnership
certificates within its scope. I would find the scope of the
exception to federal pre-emption to be far more limited. Context,
purpose, and history make clear that the “licensing and similar
laws” at issue involve employment-related licensing
systems.

															   The issuance of articles of
incorporation and partnership certificates and the like have long
had little or nothing to do with hiring or “employment.” Indeed,
Arizona provides no evidence that any State, at the time the
federal Act was enacted, had refused to grant or had revoked, say,
partnership certificates, in light of the partners’ hiring
practices of any kind, much less the hiring of unauthorized aliens.
See Ariz. Rev. Stat. Ann. §29–308 (limited partnership formed upon
the filing of a certificate of partnership providing names and
addresses); §29–345 (providing for dissolution of a limited
partnership “[o]n application by or for a partner or assignee …
whenever it is not reasonably practicable to carry on the business
in conformity with the partnership agreement”).

															   To read the exception as covering laws
governing corporate charters and partnership certificates (which
are not usually called “licensing” laws) is to permit States to
turn virtually every permission-related state law into an
employment-related “licensing” law. The State need only call the
permission a “license” and revoke the license should its holder
hire an unauthorized alien. If what was not previously an
employment-related licensing law can become one simply by using it
as a sanction for hiring unauthorized aliens or simply by state
definition, indeed, if the State can call a corporate charter an
employment-related licensing law, then why not an auto licensing
law (amended to revoke the driver’s licenses of those who hire
unauthorized aliens)? Why not a dog licensing law? Or why not
“impute” a newly required license to conduct any business to every
human being in the State, withdrawing that license should that
individual hire an unauthorized alien? See S. C. Code Ann.
§41–8–20 (Supp. 2010) (providing that “[a]ll private employers in
South Carolina … shall be imputed a South Carolina employment
license, which permits a private employer to employ a person in
this State,” but conditioning the license on the company’s not
hiring unauthorized aliens).

															   Such laws might prove more effective in
stopping the hiring of unauthorized aliens. But they are unlikely
to do so consistent with Congress’ other critically important
goals, in particular, Congress’ efforts to protect from
discrimination legal workers who look or sound foreign. That is why
we should read the federal exemption’s “licensing” laws as limited
to those that involve the kind of licensing that, in the absence of
this general state statute, would nonetheless have some significant
relation to employment or hiring practices. Otherwise we read the
federal “licensing” exception as authorizing a State to undermine,
if not to swallow up, the federal pre-emption rule.

															III

															   I would therefore read the words
“licensing and similar laws” as covering state licensing systems
applicable primarily to the licensing of firms in the business of
recruiting or referring workers for employment, such as the state
agricultural labor contractor licensing schemes in existence when
the federal Act was created. This reading is consistent with the
provision’s history and language, and it minimizes the risk of harm
of the kind just described.

															   The Act’s history supports this
interpretation. Ever since 1964, the Federal Government has
administered statutes that create a federal licensing scheme for
agricultural labor contractors, firms that specialize in recruiting
agricultural workers and referring them to farmers for a fee. Farm
Labor Contractor Registration Act of 1963 (FLCRA), 78 Stat. 920;
Migrant and Seasonal Agricultural Worker Protection Act (AWPA), 96
Stat. 2583. The statutes require agricultural labor contractors to
register with the federal Secretary of Labor, to obtain a
registration certificate (in effect a license), and to require the
contractor’s employees to carry that certificate with them when
engaging in agricultural labor contracting activities. AWPA §101;
FLCRA §4. The statutes list a host of forbidden activities, one of
which (prior to 1986) was hiring unauthorized aliens. See AWPA
§§103, 106; FLCRA §5(b). Prior to 1986, if the federal Labor
Department believed a firm had violated these substantive
provisions, it could institute administrative proceedings within
the Labor Department. And if the Secretary found the labor
contracting firm had violated the provisions, the Secretary could
impose monetary penalties or withdraw the firm’s registration. AWPA
§§103, 503; FLCRA §§5(b), 9.

															   Most important, and unlike the 1986 Act before
us, the earlier agricultural labor contracting statutes did not
pre-empt similar state laws . To the contrary, the earlier Acts
were “intended to supplement State law” and did not “excuse any
person from compliance with appropriate State law and regulation.”
AWPA §521; see FLCRA §12. By 1986, nearly a dozen States had
developed state licensing systems for agricultural labor
contractors, i.e. , firms that recruited and referred farm
(and sometimes forestry) workers for a fee; some of these laws
provided that state licenses could be revoked if the contractors
hired unauthorized aliens. See, e.g., Cal. Lab. Code
§1690(f) (Deering Supp. 1991); 43 Pa. Cons. Stat. §§1301.503(4),
1301.505(3) (1965–1983 Supp. Pamphlet); Ore. Rev. Stat.
§§658.405(1), 658.440(2)(d) (1987) (covering forestry workers).

															   In 1986, Congress (when enacting the Act now
before us) focused directly upon the earlier federal agricultural
labor contractor licensing system. And it changed that earlier
system by including a series of conforming amendments in the Act.
One amendment removes from the earlier statutes the specific
prohibition against hiring unauthorized aliens. It thereby makes
agricultural labor contractors subject to the Act’s similar general
prohibition against such hiring. IRCA §101(b)(1)(C) (repealing AWPA
§106). Another amendment takes from the Secretary of Labor most of
the Secretary’s enforcement powers in respect to the hiring of
unauthorized aliens. It thereby leaves agricultural labor
contractors subject to the same single unified enforcement system
that the immigration Act applies to all employers. See 29 U.
S. C. §1853. A third amendment, however, leaves with the
Secretary of Labor the power to withdraw the federal registration
certificate from an agricultural labor contractor that hired
unauthorized aliens. IRCA §101(b)(1)(B)(iii), 29 U. S. C.
§1813(a)(6). Thus, the Act leaves this subset of employers
( i.e. , agricultural labor contractors but not other
employers) subject to a federal licensing scheme.

															   So far, the conforming amendments make sense.
But have they not omitted an important matter? Prior to 1986,
States as well as the Federal Government could license agricultural
labor contractors. Should the 1986 statute not say whether Congress
intended that dual system to continue? The answer is that the 1986
Act does not omit this matter. It answers the coexistence question
directly with the parenthetical phrase we are now considering,
namely, the phrase, “other than through licensing and similar
laws,” placed in the middle of the Act’s pre-emption provision. 8
U. S. C. §1324a(h)(2). That phrase refers to agricultural
labor contractors, and it says that, in respect to those licensing
schemes, dual state/federal licensing can continue.

															   As of 1986, there were strong reasons for
permitting that dual system to continue in this specialized
area . Dual enforcement had proved helpful in preventing
particularly serious employment abuses. See, e.g. , 128
Cong. Rec. 24090 (1982) (reflecting concerns that agricultural
workers were “housed in hovels; … subjected to physical abuse and
kept in virtual slavery”). And because the contractors’ business
consists of providing labor forces, their hiring of authorized
workers is closely related to their general fitness to do business.
See S. Rep. No. 202, 88th Cong., 1st Sess., 1 (1963)
(explaining that farm labor contractor registration laws are needed
to prevent “irresponsible crew leaders” from “exploit[ing] …
farmers”); Martin, Good Intentions Gone Awry: IRCA and U. S.
Agriculture, 534 Annals Am. Acad. Pol. & Soc. Sci. 44, 49
(1994) (describing how farmers who relied on contractors risked
losing their labor forces to immigration raids). Dual enforcement
would not create a federal/state penalty disparity, for federal
systems as well as state systems provide for license revocation.
Experience had shown that dual enforcement had not created any
serious conflict or other difficulty. And in light of the
specialized nature and comparatively small set of businesses
subject to dual enforcement, to permit licensing of that set of
businesses would not seriously undermine the objectives of the Act
or its pre-emption provision.

															   Thus, it is not surprising that the
legislative history of the 1986 Act’s pre-emption provision says
that the licensing exception is about the licensing of agricultural
labor contractors. The House Report on the Act, referring to the
licensing exception, states that the Committee did “not intend to
preempt licensing or ‘fitness to do business laws,’ such as
state farm labor contractor laws or forestry laws, which
specifically require such licensee or contractor to refrain from
hiring, recruiting or referring undocumented aliens .”
H. R. Rep. No. 99–682, at 58 (emphasis added).

															   The Act’s language, while not requiring this
interpretation, is nonetheless consistent with limiting the scope
of the phrase in this way. Context can limit the application of the
term “licensing” to particular types of licensing. The
Act’s subject matter itself limits the term to employment-related
licensing. And the Act’s specific reference to those who “recruit
or refer for a fee for employment, unauthorized aliens,” is
consistent with employment-related li-censing that focuses
primarily upon labor contracting businesses.

															   Thus, reading the phrase as limited in scope
to laws licensing businesses that recruit or refer workers for
employment is consistent with the statute’s language, with the
relevant history, and with other statutory provisions in the Act.
That reading prevents state law from undermining the Act and from
turning the pre-emption clause on its head. That is why I consider
it the better reading of the statute.

															IV

															   Another section of the Arizona
statute requires “every employer, after hiring an employee,” to
“verify the employment eligibility of the employee” through the
Federal Government’s E-Verify program. Ariz. Rev. Stat. Ann.
§23–214. This state provision makes participation in the federal
E-Verify system mandatory for virtually all Arizona
employers. The federal law governing the E-Verify program, however,
creates a program that is voluntary. By making mandatory
that which federal law seeks to make voluntary, the state provision
stands as a significant “ ‘obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,’ ” Crosby , 530 U. S., at 373 (quoting Hines , 312 U.
S., at 67). And it is consequently pre-empted.

															   The federal statute itself makes
clear that participation in the E-Verify program is voluntary. The
statute’s relevant section bears the title “Voluntary Election to
Participate in a Pilot Program.” IIRIRA §402, note following 8 U.
S. C. §1324a, p. 331. A subsection bears the further
title, “Voluntary Election.” §402(a). And within that subsection,
the statute says that employers “ may elect to
participate.” (Emphasis added.) The statute elsewhere requires the
Secretary of Homeland Security to “widely publicize … the voluntary
nature” of the program. §402(d)(2); see also §402(d)(3)(A)
(requiring the designation of local officials to advertise the
“voluntary nature” of the program). It adds that employers may
“terminate” their “election” to participate by following certain
procedures. §402(c)(3). And it tells the Secretary of Homeland
Security (as an earlier version told the Attorney General) that she
“may not require any person or other entity to participate.”
§402(a); see also §402(e) (creating exceptions, none of which is
applicable here, that require federal employers and certain others
to participate in E-Verify or another pilot program).

															   Congress had strong reasons for insisting on
the voluntary nature of the program. E-Verify was conceived as, and
remains, a pilot program. Its database consists of tens of millions
of Social Security and immigration records kept by the Federal
Government. These records are prone to error. See, e.g., Office of the Inspector General, Social Security Administration,
Congressional Response Report: Accuracy of the Social Security
Administration’s Numident File 12 (2006) (hereinafter Social
Security Report) (estimating that 3.3 million naturalized citizens
are misclassified in a Social Security database used by E-Verify);
GAO, Employment Verification: Federal Agencies Have Taken Steps to
Improve E-Verify, but Significant Challenges Remain 16 (GAO–11–146,
2010) (hereinafter GAO Report) (noting that “erroneous
[nonconfirmations] related to name inconsistencies … remain an
issue” that “can create the appearance of discrimination because of
their disparate impact on certain cultural groups”). And making the
program mandatory would have been hugely expensive. See post , at 16 (Sotomayor, J., dissenting).

															   The E-Verify program is still a pilot program,
as a matter of statute and practice. See IIRIRA §401; Letter from
H. Couch to R. Stana (Dec. 8, 2010) (discussing aspects of E-Verify
that have yet to be implemented). The effects of the program’s
efforts to take account of, and correct for, potential errors
remain uncertain. Congress could decide that, based on the results
of the pilot, E-Verify should become a mandatory program. But it
has not yet made that determination. And in making that decision,
it will have to face a number of questions: Will workers receiving
tentative negative verdicts understand the possibility of
administrative challenge? Will they make the effort to invoke that
process, say traveling from a farm to an urban Social Security
office? Will employers prove willing to undergo the financial
burden of supporting a worker who might lose the challenge? Will
employers hesitate to train those workers during the time they
bring their challenges? Will employers simply hesitate to hire
workers who might receive an initial negative verdict—more likely
those who look or sound foreign? Or will they find ways to dismiss
those workers? These and other unanswered questions convinced
Congress to make E-Verify a pilot program, to commission continuous
study and evaluation, and to insist that participation be
voluntary.

															   In co-opting a federal program and changing
the key terms under which Congress created that program, Arizona’s
mandatory state law simply ignores both the federal language and
the reasoning it reflects, thereby posing an “ ‘obstacle to
the accomplishment’ ” of the objectives Congress’ statute
evinces. Crosby , supra , at 373 (quoting Hines , supra , at 67).

															   The majority reaches a contrary conclusion by
pointing out (1) that Congress has renewed the E-Verify program
several times, each time expanding its coverage, to the point where
it now encompasses all 50 States; (2) that the E-Verify database
has become more accurate; (3) that the Executive Branch has itself
mandated participation for federal contractors; and (4) that the
statute’s language tells the Secretary of Homeland Security, not the States, to maintain the program as voluntary.

															   The short, and, I believe, conclusive answers
to these objections are: (1) Congress has kept the language of the
statute—and the voluntary nature of the program—the same throughout
its program renewals. See 115 Stat. 2407; 117 Stat. 1944; §547, 123
Stat. 2177. And it is up to Congress, not to Arizona or this Court,
to decide when participation in the program should cease to be
voluntary.

															   (2) The studies and reports have repeatedly
found both (a) that the E-Verify program had achieved greater
accuracy, but (b) that problems remain. See, e.g., Social
Security Report 11 (estimating that Social Security records contain
4.8 million “discrepancies that could require the numberholder to
visit [the Social Security Administration] … before employment
eligibility would be confirmed”); GAO Report 19 (estimating that,
if E-Verify were made mandatory nationwide, 164,000 newly hired
workers each year would erroneously be adjudged ineligible to work
because of name mismatches, as when the worker’s “first or last
name is incorrectly spelled in government databases or on
identification documents”). And it is up to Congress, not to
Arizona or this Court, to determine when the federally designed and
federally run E-Verify program is ready for expansion.

															   (3) Federal contractors are a special group of
employers, subject to many special requirements, who enter
voluntarily into a special relation with the Government. For the
Federal Government to mandate that a special group participate in
the E-Verify program tells us little or nothing about the effects
of a State’s mandating that nearly every employer within the State
participate—as Arizona has done. And insofar as we have not
determined whether the Executive was authorized by Congress to
mandate E-Verify for federal contractors, it says nothing about
Congress’ intent.

															   (4) There is no reason to imply negatively
from language telling the Secretary not to make the
program mandatory, permission for the States to do so. There is no
presumption that a State may modify the operation of a uniquely
federal program like E-Verify. Cf. Buckman Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 347–348
(2001); Boyle v. United Technologies Corp. , 487 U. S. 500 ,
504–505 (1988); see also post , at 15–16 (Sotomayor, J.,
dissenting). The remaining federal statutory language makes clear
the voluntary nature of the E-Verify program. Arizona’s plan would
undermine that federal objective.

															   For these reasons I would hold that the
federal Act, including its E-Verify provisions, pre-empts Arizona’s
state law. With respect, I dissent from the majority’s contrary
holdings. SOTOMAYOR, J., DISSENTING CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA V. WHITING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES OF
AMERICA, et al., PETITIONERS v. MICHAEL B. WHITING
et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[May 26, 2011]

															   Justice Sotomayor,
dissenting.

															   In enacting the Immigration
Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, Congress
created a “comprehensive scheme prohibiting the employment of
illegal aliens in the United States.” Hoffman Plastic
Compounds, Inc. v. NLRB , 535 U. S. 137 , 147
(2002). The Court reads IRCA’s saving clause—which preserves from
pre-emption state “licensing and similar laws,” 8 U. S. C.
§1324a(h)(2)—to permit States to determine for themselves whether
someone has employed an unauthorized alien so long as they do so in
conjunction with licensing sanctions. This reading of the saving
clause cannot be reconciled with the rest of IRCA’s comprehensive
scheme. Having constructed a federal mechanism for determining
whether someone has knowingly employed an unauthorized alien, and
having withheld from the States the information necessary to make
that determination, Congress could not plausibly have intended for
the saving clause to operate in the way the majority reads it to
do. When viewed in context, the saving clause can only be
understood to preserve States’ authority to impose licensing
sanctions after a final federal determination that a person has
violated IRCA by knowingly employing an unauthorized alien. Because
the Legal Arizona Workers Act instead creates a separate state
mechanism for Arizona state courts to determine whether a person
has employed an unauthorized alien, I would hold that it falls
outside the saving clause and is pre-empted.

															   I would also hold that federal law pre-empts
the provision of the Arizona Act making mandatory the use of
E-Verify, the federal electronic verification system. By requiring
Arizona employers to use E-Verify, Arizona has effectively made a
decision for Congress regarding use of a federal resource, in
contravention of the significant policy objectives motivating
Congress’ decision to make participation in the E-Verify program
voluntary.

															I

															A

															   I begin with the plain text of
IRCA’s pre-emption clause. IRCA expressly pre-empts States from
“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.”[ Footnote 1 ] Ibid. The Arizona Act, all agree,
imposes civil sanctions upon those who employ unauthorized aliens.
The Act thus escapes express pre-emption only if it falls within
IRCA’s parenthetical saving clause for “licensing and similar
laws.” Ibid. The saving clause is hardly a
paragon of textual clarity. IRCA does not define “licensing,” nor
does it use the word “licensing” in any other provision. Laws that
impose sanctions by means of licensing exist in many forms. Some
permit authorities to take action with respect to licenses upon
finding that a licensee has engaged in prohibited conduct. See,
e.g. , Ariz. Rev. Stat. Ann. §4–210(A)(1) (West 2011) (liquor
licenses may be suspended or revoked if the licensing authority
determines after notice and a hearing that repeated acts of
violence have occurred on the licensed premises). Others, more
narrowly, permit authorities to take such action following a
pre-existing determination by another authorized body that the
licensee has violated another provision of law. See, e.g. ,
§4–202(D) (liquor licenses may not be renewed to persons who have
been convicted of felonies within the past five years). That both
types of laws might be defined in some contexts as licensing laws
does not necessarily mean that Congress intended the saving clause
to encompass both types. See Dolan v. Postal
Service , 546 U.
S. 481 , 486 (2006) (“A word in a statute may or may not extend
to the outer limits of its definitional possibilities”); see also FCC v. AT&T Inc. , 562 U. S. ___, ___ (2011)
(slip op., at 9) (“[C]onstruing statutory language is not merely an
exercise in ascertaining the outer limits of [a word’s]
definitional possibilities” (internal quotation marks omitted;
second alteration in original)). In isolation, the text of IRCA’s
saving clause provides no hint as to which type or types of
licensing laws Congress had in mind.

															B

															   Because the plain text of the
saving clause does not resolve the question, it is necessary to
look to the text of IRCA as a whole to illuminate Congress’ intent.
See Dolan , 546 U. S., at 486 (“Interpretation of a word or
phrase depends upon reading the whole statutory text, considering
the purpose and context of the statute”); Ali v. Federal Bureau of Prisons , 552 U. S. 214 , 222
(2008) (construction of a statutory term “must, to the extent
possible, ensure that the statutory scheme is coherent and
consistent”); Davis v. Michigan Dept. of
Treasury , 489
U. S. 803 , 809 (1989) (“[St]tatutory language cannot be
construed in a vacuum. It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme”).[ Footnote 2 ]

															   Before Congress enacted IRCA in
1986, a number of States had enacted legislation prohibiting
employment of unauthorized aliens. See ante , at 2, and n.
1 (citing 12 such laws). California, for example, prohibited the
knowing employment of an alien “who is not entitled to lawful
residence in the United States” when “such employment would have an
adverse effect on lawful resident workers,” and made violations
punishable by fines of $200 to $500. 1971 Cal. Stats. ch. 1442, §1;
see also De Canas v. Bica , 424 U. S. 351 , 352, n. 1
(1976). Kansas went even further, making it a misdemeanor,
punishable by a term of confinement not to exceed one month, to
employ a person within Kansas knowing “such person to be illegally
within the territory of the United States.” Kan. Stat. Ann.
§§21–4409, 21–4502 (1981).[ Footnote
3 ]

															   Congress enacted IRCA amidst this patchwork of
state laws. IRCA “ ‘forcefully’ made combating the employment
of illegal aliens central to ‘the policy of immigration
law.’ ” Hoffman , 535 U. S., at 147 (quoting INS v. National Center for Immigrants’ Rights,
Inc. , 502 U. S.
183 , 194, and n. 8 (1991); brackets omitted); see also
H. R. Rep. No. 99–682, pt. 1, p. 46 (1986) (hereinafter
H. R. Rep. No. 99–682) (“[L]egislation containing employer
sanctions is the most humane, credible and effective way to respond
to the large-scale influx of undocumented aliens”). As the majority
explains, IRCA makes it “unlawful for a person or other entity 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); ante , at 3. IRCA also requires employers
to verify that they have reviewed documents establishing an
employee’s eligibility for employment. See §1324a(b); ante , at 3–4. These two provisions are the foundation of
IRCA’s “comprehensive scheme prohibiting the employment of illegal
aliens in the United States.” Hoffman , 535 U. S., at
147.

															   Congress made explicit its intent that IRCA be
enforced uniformly. IRCA declares that “[i]t is the sense of the
Congress that … the immigration laws of the United States should be
enforced vigorously and uniformly .” §115, 100 Stat. 3384
(emphasis added). Congress structured IRCA’s provisions in a number
of ways to accomplish this goal of uniform enforcement.

															   First, and most obviously, Congress expressly
displaced the myriad state laws that imposed civil and criminal
sanctions on employers who hired unauthorized aliens. See
§1324a(h)(2); see also H. R. Rep. No. 99–682, at 58 (“The
penalties contained in this legislation are intended to
specifically preempt any state or local laws providing civil fines
and/or criminal sanctions on the hiring, recruitment or referral of
undocumented aliens”). Congress could not have made its intent to
pre-empt state and local laws imposing civil or criminal sanctions
any more “ ‘clear [or] manifest.’ ” Medtronic,
Inc. v. Lohr , 518 U. S. 470 , 485
(1996) (quoting Rice v. Santa Fe Elevator Corp. , 331 U. S. 218 ,
230 (1947)).

															   Second, Congress centralized in the Federal
Government enforcement of IRCA’s prohibition on the knowing
employment of unauthorized aliens. IRCA instructs the Attorney
General to designate a specialized federal agency unit whose
“primary duty” will be to prosecute violations of IRCA.
§1324a(e)(1)(D). IRCA also instructs the Attorney General to
establish procedures for receiving complaints, investigating
complaints having “a substantial probability of validity,” and
investigating other violations. §1324a(e)(1); see also 8 CFR
§274a.9 (2010). Upon concluding that a person has violated IRCA,
the Attorney General must provide the person with notice and an
opportunity for a hearing before a federal administrative law judge
(ALJ). 8 U. S. C. §§1324a(e)(3)(A), (B). If the person does
not request a hearing, the Attorney General may impose a final,
nonappealable order requiring payment of sanctions.
§1324a(e)(3)(B). If the person requests a hearing, the ALJ is
required to hold a hearing and, upon finding that the person has
violated IRCA, must order the payment of sanctions.
§1324a(e)(3)(C). The ALJ’s order is the final agency order, unless
the affected person requests and obtains further administrative
appellate review. §1324a(e)(7); see also 28 CFR §68.54 (2010). IRCA
grants immigration officers and ALJs “reasonable access to examine
evidence of any person or entity being investigated” and provides
them with extensive subpoena powers. §1324a(e)(2). And the
immigration officers investigating suspected violations obviously
have access to the relevant federal information concerning the work
authorization status of the employee in question.[ Footnote 4 ]

															   Third, Congress provided persons “adversely
affected” by an agency order with a right of review in the federal
courts of appeals. §1324a(e)(8); see also §1324a(e)(9) (directing
the Attorney General in cases of noncompliance to file suit in
federal district court to enforce a final order imposing
sanctions); §1324a(f) (authorizing the Attorney General to pursue
injunctive relief and criminal sanctions in federal district
court). In this way, Congress ensured that administrative orders
finding violations of IRCA would be reviewed by federal judges with
experience adjudicating immigration-related matters.

															   Fourth, Congress created a uniquely federal
system by which employers must verify the work authorization status
of new hires. Under this system, an employer must attest under
penalty of perjury on a form designated by the Attorney General
(the I–9 form) that it has examined enumerated identification
documents to verify that a new hire is not an unauthorized alien.
§1324a(b)(1)(A); see also 8 CFR §274a.2; ante , at 3–4.
Good-faith compliance with this verification requirement entitles
an employer to an affirmative defense if charged with violating
IRCA. §1324a(a)(3); see also H. R. Rep. No. 99–682, at 57.
Notably, however, IRCA prohibits use of the I–9 form for any
purpose other than enforcement of IRCA and various provisions of
federal criminal law. §1324a(b)(5); 8 CFR §274a.2(b)(4). Use of the
I–9 form is thus limited to federal proceedings, as the
majority acknowledges. See ante , at 18, n. 9.

															   Finally, Congress created no mechanism for
States to access information regarding an alien’s work
authorization status for purposes of enforcing state prohibitions
on the employment of unauthorized aliens. The relevant sections of
IRCA make no provision for the sharing of work authorization
information between federal and state authorities even though
access to that information would be critical to a State’s ability
to determine whether an employer has employed an unauthorized
alien. In stark contrast, a separate provision in the same title of
IRCA creates a verification system by which States can ascertain
the immigration status of aliens applying for benefits under
programs such as Medicaid and the food stamp program. See IRCA
§121(a)(1)(C), 42 U. S. C. §1320b–7(d)(3). The existence of a
verification system in one provision of IRCA, coupled with its
absence in the provision governing employment of unauthorized
aliens, suggests strongly that Congress did not contemplate any
role for the States in adjudicating questions regarding employment
of unauthorized aliens. Cf. Bates v. United
States , 522 U.
S. 23 , 29–30 (1997) (“Where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion” (internal quotation marks and brackets omitted)).

															   In an attempt to show that Congress intended
for the Federal Government to share immigration-related
in-formation with the States, Arizona points to a federal statute,
8 U. S. C. §1373(c), requiring the Government to respond to
certain inquiries from state agencies. Section 1373(c), however,
merely requires the Government to respond to inquiries from state
agencies “seeking to verify or ascertain the citizenship or
immigration status of any individual within the jurisdiction of the
agency.” It does not require the provision of information regarding
an alien’s work authorization status, which is not necessar- ily
synonymous with immigration status. See 8 CFR §274a.12(c)
(identifying categories of legal aliens “who must apply
for employment authorization”).[ Footnote 5 ] Arizona has not identified any federal statute
or regulation requiring the Federal Government to provide
information regarding an alien’s work authorization status to a
State.[ Footnote 6 ] More
importantly, §1373(c) was enacted in 1996, see §642(c), 110 Stat.
3009–707, and thus says nothing about Congress’ intent when it
enacted IRCA’s saving clause a decade earlier. See Jones v. United States , 526 U. S. 227 , 238
(1999).

															   Collectively, these provisions demonstrate
Congress’ intent to build a centralized, exclusively federal scheme
for determining whether a person has “employ[ed], or recruit[ed] or
refer[red] for a fee for employment, unauthorized aliens.” 8 U.
S. C. §1324a(h)(2).

															C

															   IRCA’s saving clause must be
construed against this backdrop. Focusing primarily on the text of
the saving clause, Arizona and the majority read the clause to
permit States to determine themselves whether a person has employed
an unauthorized alien, so long as they do so in connection with
licensing sanctions. See ante , at 12–13. This
interpretation overlooks the broader statutory context and renders
the statutory scheme “[in]coherent and [in]consistent.” Ali , 552 U. S., at 222.

															   Under the majority’s reading of
the saving clause, state prosecutors decide whether to commence
licensing-related proceedings against a person suspected of
employing an unauthorized alien. The majority’s holding also
permits state courts and other tribunals to adjudicate the question
whether an employer has employed an unauthorized alien. The Arizona
Act illustrates the problems with reading the saving clause to
permit such state action. The Act directs prosecutors to verify an
employee’s work authorization with the Federal Government pursuant
to §1373(c), e.g. , Ariz. Rev. Stat. Ann. §23–212(B) (West
Supp. 2010), and the state court “shall consider only the federal
government’s determination pursuant to [§]1373(c)” in “determining
whether an employee is an unauthorized alien,” e.g. ,
§23–212(H).[ Footnote 7 ] Putting
aside the question whether §1373(c) actually provides access to
work authorization information, §1373(c) did not exist when IRCA
was enacted in 1986. See supra , at 9. Arizona has not
identified any avenue by which States could have accessed work
authorization information in the first decade of IRCA’s existence.
The absence of any such avenue at the time of IRCA’s enactment
speaks volumes as to how Congress would have understood the saving
clause to operate: If States had no access to information regarding
the work authorization status of aliens, how could state courts
have accurately adjudicated the question whether an employer had
employed an unauthorized alien?

															   The Arizona Act’s reliance on §1373(c)
highlights the anomalies inherent in state schemes that purport to
adjudicate whether an employee is an authorized alien. Even when
Arizona prosecutors obtain information regarding an alien’s immigration status pursuant to §1373(c), the prosecutors
and state court will have to determine the significance of that
information to an alien’s work authorization status, which
will often require deciding techni- cal questions of immigration
law. See, e.g. , 8 CFR §§274a.12(a)–(c) (dividing 62
different classes of aliens into those authorized for employment
incident to immigration status, those authorized for employment
with a specific employer incident to immigration status, and those
who must apply for work authorization). And, as discussed above,
that information may not shed light at all on an alien’s work
authorization status, which is oftentimes distinct from immigration
status. See supra , at 8, and n. 5. As a result, in
many cases state decisions—made by prosecutors and courts with no
or little experience in federal immigration law—will rest on
less-than-complete or inaccurate information, “creat[ing]
enforcement risks not present in the federal system.” Ante , at 7 (Breyer, J., dissenting). I can discern no
reason why Congress would have intended for state courts
inexperienced in immigration matters to adjudicate, in the context
of licensing sanctions, the very same question that IRCA commits to
federal officers, ALJs, and the courts of appeals.

															   Equally problematic is the fact that employers
charged under a state enforcement scheme with hiring unauthorized
aliens are foreclosed from using I–9 forms in their defense in the
state proceedings. Like IRCA, the Arizona Act confers an
affirmative defense on employers who comply in good faith with
IRCA’s verification requirement. See Ariz. Rev. Stat. Ann.
§§23–212(J), 23–212.01(J). As discussed above, however, IRCA
prohibits an employer from using the I–9 form to establish that
affirmative defense under Arizona law. See 8 U. S. C.
§1324a(b)(5); 8 CFR §274a.2(b)(4). Not to worry, the majority says:
The employer can establish the affirmative defense through office
policies and testimony of employees. Ante , at 18,
n. 9. But Congress made the I–9 verification system and
accompanying good-faith defense central to IRCA. See, e.g. , H. R. Rep. No. 99–682, at 60 (“[A]n effective
verification procedure, combined with an affirmative defense for
those who in good faith follow the procedure, is essential”). Given
the importance of this procedure, if Congress in fact intended for
state courts to adjudicate whether a person had employed an
unauthorized alien in connection with licensing sanctions, why
would it have prohibited that person from using the I–9 form—“the
employer’s most effective evidence,” ante , at 9 (Breyer,
J., dissenting)—in the state-court proceeding? The question answers
itself: Congress intended no such thing.

															   Furthermore, given Congress’ express goal of
“unifor[m]” enforcement of “the immigration laws of the United
States,” IRCA §115, 100 Stat. 3384, I cannot believe that Congress
intended for the 50 States and countless localities to implement
their own distinct enforcement and adjudication procedures for
deciding whether employers have employed unauthorized aliens.
Reading the sav-ing clause as the majority does subjects employers
to a patchwork of enforcement schemes similar to the one that
Congress sought to displace when it enacted IRCA. Having carefully
constructed a uniform federal scheme for determining whether a
person has employed an unauthorized alien, Congress could not
plausibly have meant to create such a gaping hole in that scheme
through the undefined, parenthetical phrase “licensing and similar
laws.” See Whitman v. American Trucking Assns.,
Inc. , 531 U. S.
457 , 468 (2001) (“Congress … does not, one might say, hide
elephants in mouseholes”).

															   In sum, the statutory scheme as a whole
defeats Arizona’s and the majority’s reading of the saving clause.
Congress would not sensibly have permitted States to determine for
themselves whether a person has employed an unauthorized alien,
while at the same time creating a specialized federal procedure for
making such a determination, withholding from the States the
information necessary to make such a determination, and precluding
use of the I–9 forms in nonfederal proceedings. See United
States v. Locke , 529 U. S. 89 , 106 (2000)
(“We decline to give broad effect to saving clauses where doing so
would upset the careful regulatory scheme established by federal
law”).

															   To render IRCA’s saving clause consistent with
the statutory scheme, I read the saving clause to permit States to
impose licensing sanctions following a final federal determination
that a person has violated §1324a(a)(1)(A) by knowingly hiring,
recruiting, or referring for a fee an unauthorized alien.[ Footnote 8 ] This interpretation both is
faithful to the saving clause’s text, see supra , at 2–3,
and best reconciles the saving clause with IRCA’s “careful
regulatory scheme,” Locke , 529 U. S., at 106. It also
makes sense as a practical matter. In enacting IRCA’s pre-emption
clause, Congress vested in the Federal Government the authority to
impose civil and criminal sanctions on persons who employ
unauthorized aliens. Licensing and other types of business-related
permissions are typically a matter of state law, however. See, e.g. , Kamen v. Kemper Financial Services,
Inc. , 500 U. S.
90 , 98 (1991) (noting that “[c]orporation law” is an area
traditionally “governed by state-law standards”); Chicago Title
& Trust Co. v. Forty-One Thirty-Six Wilcox Bldg.
Corp. , 302 U.
S. 120 , 127 (1937) (“How long and upon what terms a
state-created corporation may continue to exist is a matter
exclusively of state power”). As a result, if Congress wanted to
“ensur[e] that a full range of sanctions [was] available to be used
against businesses that employ unauthorized aliens,” Brief for
Respondent 37, Congress had to authorize the States and localities
to impose licensing sanctions following a federal adjudication of a
violation of IRCA.

															   I do not mean to suggest that the mere
existence of a comprehensive federal scheme necessarily reveals a
congressional intent to oust state remedies. Cf. English v. General Elec. Co. , 496 U. S. 72 , 87 (1990)
(“[T]he mere existence of a federal regulatory or enforcement
scheme … does not by itself imply pre-emption of state remedies”); New York State Dept. of Social Servs. v. Dublino , 413 U. S. 405 ,
415 (1973) (rejecting the argument that “pre-emption is to be
inferred merely from the comprehensive character of the federal
[program]”). Here, Congress has made clear its intent to oust state
civil and criminal remedies; the sole question is the scope of the
saving clause’s exception for “licensing and similar laws.” The
comprehensive scheme established by Congress necessarily informs
the scope of this clause. For all the reasons stated, the only
interpretation of that clause that is consistent with the rest of
the statute is that it preserves the States’ authority to impose
licensing sanctions after a final federal determination that a
person has violated IRCA’s prohibition on the knowing employment of
unauthorized aliens.

															   Under my construction of the saving clause,
the Arizona Act cannot escape pre-emption. The Act authorizes
Arizona county attorneys to commence actions charging an employer
with having employed an unauthorized alien. Ariz. Rev. Stat. Ann.
§§23–212(D), 23–212.01(D). Arizona state courts must find that an
employer has employed an unauthorized alien before imposing the
sanctions enumerated in the Act. §§23–212(F), 23–212.01(F). Because
the Act’s sanctions are not premised on a final federal
determination that an employer has violated IRCA, I would hold that
the Act does not fall within IRCA’s saving clause and is therefore
pre-empted.[ Footnote 9 ]

															II

															   I agree with the conclusion
reached by Justice Breyer in Part IV of his dissenting opinion that
federal law impliedly pre-empts the provision in the Arizona Act
requiring all Arizona employers to use the federal E-Verify
program. See Ariz. Rev. Stat. Ann. §23–214. I also agree with much
of his reasoning. I write separately to offer a few additional
observations.

															   As we have recently recognized,
that a state law makes mandatory something that federal law makes
voluntary does not mean, in and of itself, that the state law
“stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,” Crosby v. National Foreign Trade Council , 530 U. S. 363 , 373
(2000) (internal quotation marks omitted). See Williamson v. Mazda Motor of America, Inc. , 562 U. S. ___, ___ (2011)
(slip op., at 1–2) (concluding that a federal regulation permitting
manufacturers to choose between two seatbelt options did not
pre-empt state tort liability based on a decision to install one of
those options); see also id. , at ___ (slip op., at 2)
(Sotomayor, J., concurring) (“[T]he mere fact that an agency
regulation allows manufacturers a choice between options is
insufficient to justify implied pre-emption”).

															   This case, however, is readily distinguishable
from cases like Williamson , in which state law regulates
relationships between private parties. Here, the Arizona Act
directly regulates the relationship between the Federal Government
and private parties by mandating use of a federally created and
administered resource. This case thus implicates the “uniquely
federal interes[t]” in managing use of a federal resource. Boyle v. United Technologies Corp. , 487 U. S. 500 , 504
(1988) (internal quotation marks omitted); see also Buckman
Co. v. Plaintiffs’ Legal Comm. , 531 U. S. 341 , 347
(2001) (“[T]he relationship between a federal agency and the entity
it regulates is inherently federal in character because the
relationship originates from, is governed by, and terminates
according to federal law”).

															   Significant policy objectives motivated
Congress’ decision to make use of E-Verify voluntary. In addition
to those discussed by Justice Breyer, see ante , at 17–19
(dissenting opinion), I note that Congress considered the cost of a
mandatory program. In 2003, when Congress elected to expand
E-Verify to all 50 States but declined to require its use, it cited
a congressionally mandated report concluding that the annual cost
of the pilot program was $6 million, the annual cost of a
nationwide voluntary program would be $11 million, and the annual
cost of a nationwide mandatory program would be $11.7 billion . H. R. Rep. No. 108–304, pt. 1, p. 6
(2003); see also Institute for Survey Research, Temple Univ., and
Westat, INS Basic Pilot Evaluation: Summary Report 38 (2002)
(concluding that the Social Security Administration (SSA) and the
Immigration and Naturalization Service were not “capable of
enrolling and administering a program for the hundreds of thousands
of employers in any of the large mandatory programs explored
here”). A more recent re-port prepared for the Department of
Homeland Security similarly noted the costs associated with
mandatory use of E-Verify. See Westat, Findings of the E-Verify®
Program Evaluation 224 (2009) (observing that the SSA estimated
that it would have to hire an additional 1,500 field staff to
handle a mandatory national program); id. , at 251
(re-commending that any expansion of E-Verify take place gradually
“to allow the Federal government adequate time to hire and train
the new staff required to run such a program”). Permitting States
to make use of E-Verify mandatory improperly puts States in the
position of making decisions for the Federal Government that
directly affect expenditure and depletion of federal
resources.[ Footnote 10 ]

															   The majority highlights the Government’s
statement in its amicus brief that “ ‘the E-Verify
system can accommodate the increased use that the Arizona statute
and existing similar laws would create.’ ” Ante , at
25 (quoting Brief for United States as Amicus Curiae 34).
But “[t]he purpose of Congress is the ultimate touchstone in every
pre-emption case.” Medtronic , 518 U. S., at 494 (internal
quotation marks omitted). It matters not whether the Executive
Branch believes that the Government is now capable of handling the
burdens of a mandatory system.[ Footnote 11 ] Congressional intent controls, and Congress
has repeatedly decided to keep the E-Verify program voluntary.
Because state laws requiring use of E-Verify frustrate the
significant policy objectives underlying this decision, thereby
imposing explicitly unwanted burdens on the Federal Government, I
would hold that federal law impliedly pre-empts the Arizona
requirement.

															*  *  *

															   For these reasons, I cannot agree
with either of the Court’s holdings in this case. I respectfully
dissent. Footnote 1 IRCA defines the term “unauthorized alien” to
mean, “with respect to the employment of an alien at a particular
time, that the alien is not at that time either (A) an alien
lawfully admitted for permanent residence, or (B) authorized to be
so employed by this chapter or by the Attorney General.” 8 U.
S. C. §1324a(h)(3). Footnote 2 As these cases demonstrate, a contextual
analysis of a statutory provision is in no way “untethered” from
the statute’s text. Ante , at 15, n. 6. To the
contrary, the majority’s reading of the saving clause—with its
singular focus on the undefined word “licensing” to the exclusion
of all contextual considerations—is “untethered” from the statute
as a whole. Footnote 3 None of the pre-IRCA state laws cited by the
majority provided for licensing-related sanctions. The parties have
not identified any pre-IRCA state laws related to licensing that
purported to regulate the employment of unauthorized aliens other
than those governing agricultural labor contractors. See ante , at 13–14 (Breyer, J., dissenting). Footnote 4 By regulation, the Attorney General has
conferred on parties charged with violating IRCA the right to
obtain discovery from the Federal Government in a hearing before an
ALJ. See 28 CFR §68.18. Footnote 5 For example, spouses and minor children of
persons working in the United States as exchange visitors must
apply for employment authorization even though they have lawful
immigration status as dependents of the exchange visitor. See 8 CFR
§274a.12(c)(5). Footnote 6 In its capacity as an employer, a State may
be able to access in-formation regarding the work authorization
status of its employees through use of E-Verify. Footnote 7 However, the “federal government’s
determination creates [only] a rebuttable presumption of the
employee’s lawful status.” E.g. , §23–212(H). Footnote 8 This reading of the saving clause finds
support in IRCA’s legislative history. The House Committee on the
Judiciary reported that IRCA was “not intended to preempt or
prevent lawful state or local processes concerning the suspension,
revocation or refusal to reissue a license to any person who has
been found to have violated the sanctions pro-visions in this
legislation .” H. R. Rep. No. 99–682, at 58 (emphasis
added). The Committee’s reference to “this legislation” is, of
course, a reference to IRCA, and only federal officers, ALJs, and
courts have authority under IRCA to find that a person has violated
the statute’s sanctions provisions.

															   My reading is also consistent with, though not
compelled by, the provisions in IRCA that amended the Migrant and
Seasonal Agricultural Worker Protection Act (AWPA), 96 Stat. 2583.
As Justice Breyer discusses in detail, see ante , at 13–15
(dissenting opinion), AWPA requires entities to secure a
certificate of registration from the Department of Labor before
engaging in any “farm labor contracting activity.” AWPA §101, 96
Stat. 2587, 29 U. S. C. §1811(a). Before 1986, AWPA prohibited
farm labor contractors from hiring unauthorized aliens, and it
permitted the Department of Labor to institute administrative
proceedings to enforce this prohibition. See §§103(a)(3), 103(b),
106(a), 96 Stat. 2588–2590. In IRCA, Congress repealed this
pro-hibition, IRCA §101(b)(1)(C), but authorized the Secretary of
Labor to withdraw a contractor’s federal registration certificate
upon a finding of an IRCA violation, IRCA §101(b)(1)(B)(iii), 100
Stat. 3372, 29 U. S. C. §1813(a)(6). Thus, IRCA made AWPA’s
licensing sanctions turn on a prior federal adjudication of a
violation of IRCA. Footnote 9 Because I believe that the Arizona Act does
not fall within IRCA’s saving clause for this reason, I have no
reason to consider the sepa- rate question whether the Act’s
definition of “license” sweeps too broadly. Compare ante ,
at 9–11, with ante , at 1–2, 11–12 (Breyer, J.,
dissenting). Footnote 10 In Williamson v. Mazda Motor of
America, Inc. , 562 U. S. ___, ___ (2011) (slip op., at 10), we
held that the Federal Government’s judgment regarding the cost
effectiveness of seatbelt options did not reveal an intent “to
forbid common-law tort suits in which a judge or jury might reach a
different conclusion.” The obvious distinction between that case
and this one is that Congress’ decision to keep use of E-Verify
voluntary bears directly on the costs to the Federal Government
itself. Footnote 11 Notably, the Government’s brief does not
state that the E-Verify system could accommodate the increased use
that would result if all 50 States enacted similar laws; it limits
its statement to “the Arizona statute and existing similar
laws.” Brief for United States as Amicus Curiae 34
(emphasis added).

Summary: The Supreme Court ruled that Arizona's Legal Arizona Workers Act, which allows for the suspension or revocation of state licenses for employers who knowingly hire unauthorized aliens, is not preempted by federal immigration law. The Court found that the state's licensing provisions fall within the savings clause of the federal statute and do not conflict with federal law.