On November 1, 2010 at 9:00 a.m. the Ninth Circuit Court of Appeals will hear oral arguments in U.S.A. v. State of Arizona, Case No. 10-16645, at the James R. Browning U.S. Courthouse in San Francisco. This controversial case addresses the constitutionality of Arizona Senate Bill 1070, which requires state law enforcement officers to check a person’s immigration status under certain circumstances, and authorizes a warrantless arrest where there is probable cause to believe that the person has committed an offense making him/her removable from the United States. The U.S. government argues that federal statutes preempt SB 1070. The U.S. District Court for the District of Arizona previously issued a preliminary injunction in part and denied it in part. The State of Arizona and Governor Brewer appealed asking the Ninth Circuit to repeal the injunction imposed by the District Court. Parts of the law not subject to the injunction went into effect July 29, 2010. C-SPAN Channel 1 will broadcast the oral arguments live with remote viewing available in other federal courthouses.

The preemption issue is very important for several reasons. First, a number of states have enacted or are on the verge of enacting copycat legislation because Congress has simply failed to do its job to enact immigration reform legislation. In addition, many people feel the U.S. Department of Homeland Security (DHS) has not done enough to secure the borders and punish employers who hire workers without legal documents. Secondly, states and localities have tried to address perceived immigration problems by regulating who can rent housing, obtain business and professional licenses, seek social services and other activities. More commonly, states and localities have enacted employer verification obligations requiring employers in their jurisdictions to use the the federal government’s computerized E-Verify system to document work permission status of employees.

Meanwhile, all eyes are on the U.S. Supreme Court in the case of Chamber of Commerce v. Whiting, case 09-115 (formerly titled Chamber of Commerce v. Candelaria in the Ninth Circuit Court of Appeals). Oral arguments are scheduled for December 8. All of the briefs, which include several amicus briefs in support of the petitioner, U.S. Chamber of Commerce, and a plain description of the case can be found on SCOTUS Blog. See also the U.S. Supreme Court docket for all filings in the case. The Chamber case addresses the question of whether the Immigration Reform and Control Act of 1986 (IRCA), as amended, preempts federal law that makes use of E-Verify voluntary. Although many in Congress and at DHS would like to see mandatory E-Verify for all employers, right now under federal law, the use of E-Verify is voluntary nationwide except for federal contractors and some employers who have been audited by DHS. However, several states and localities require employers to use E-Verify if engaged in state or local contracting, and other states are just waiting to enact mandatory E-Verify for all employers. For employers conducting business in several states, the patchwork of E-Verify requirements as well as penalties outside the federal scheme found across the country can be very confusing. On the other hand, the federal requirements attempt to be a comprehensive scheme for all employers.

The preemption doctrine has application to other areas of law as well such as environmental regulation. Therefore, it will be interesting to see the far-reaching consequences of any decision by the U.S. Supreme Court in Chamber v. Whiting.