Chamber of Commerce of United States of America v. Whiting

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CHAMBER OF COMMERCE OF THE UNITED STATES

OF AMERICA ET AL. v. WHITING ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 09–115. Argued December 8, 2010—Decided May 26, 2011

The Immigration Reform and Control Act (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). Employers that vio

late that prohibition may be subjected to federal civil and criminal

sanctions. IRCA also restricts the ability of States to combat em

ployment 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 re

cruit or refer for a fee for employment, unauthorized aliens.”

§1324a(h)(2).

IRCA also requires employers to take steps to verify an employee’s

eligibility for employment. In an attempt to improve that verification

process in the Illegal Immigration Reform and Immigrant Responsi

bility Act (IIRIRA), Congress created E-Verify—an internet-based

system employers can use to check the work authorization status of

employees.

Against this statutory 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.” Arizona is one of them. The Legal Arizona Workers

Act provides that the licenses of state employers that knowingly or

intentionally employ unauthorized aliens may be, and in certain cir

cumstances must be, suspended or revoked. That law also requires

that all Arizona employers use E-Verify.

The Chamber of Commerce of the United States and various busi

ness and civil rights organizations (collectively Chamber) filed this

2 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Syllabus

federal preenforcement suit against those charged with administer

ing the Arizona law, arguing that the state law’s license suspension

and revocation provisions were both expressly and impliedly pre

empted by federal immigration law, and that the mandatory use of E-

Verify was impliedly preempted. The District Court found that the

plain language of IRCA’s preemption clause did not invalidate the

Arizona law because the law did no more than impose licensing con

ditions on businesses operating within the State. Nor was the state

law preempted with respect to E-Verify, the court concluded, because

although Congress had made the program voluntary at the national

level, it had expressed no intent to prevent States from mandating

participation. The Ninth Circuit affirmed.

Held: The judgment is affirmed.

558 F. 3d 856, affirmed.

THE CHIEF JUSTICE delivered the opinion of the Court with respect

to Parts I and II–A, concluding that Arizona’s licensing law is not ex

pressly preempted.

Arizona’s licensing law falls well within the confines of the author

ity Congress chose to leave to the States and therefore is not ex

pressly preempted. While IRCA prohibits States from imposing “civil

or criminal sanctions” on those who employ unauthorized aliens, it

preserves state authority to impose sanctions “through licensing and

similar laws.” §1324a(h)(2). That is what the Arizona law does—it

instructs courts to suspend or revoke the business licenses of in-state

employers that employ unauthorized aliens. The definition of “li

cense” contained in the Arizona statute largely parrots the definition

of “license” that Congress codified in the Administrative Procedure

Act (APA).

The state statute also includes within its definition of “license”

documents such as articles of incorporation, certificates of partner

ship, and grants of authority to foreign companies to transact busi

ness in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has

clear counterparts in APA and dictionary definitions of the word “li

cense.” And even if a law regulating articles of incorporation and the

like is not itself a “licensing law,” it is at the very least “similar” to

one, and therefore comfortably within the savings clause. The

Chamber’s argument that the Arizona law is not a “licensing” law be

cause it operates only to suspend and revoke licenses rather than to

grant them is without basis in law, fact, or logic.

The Chamber contends that the savings clause should apply only to

certain types of licenses or only to license revocation following an

IRCA adjudication because Congress, when enacting IRCA, elimi

nated unauthorized worker prohibitions and associated adjudication

procedures in another federal statute. But no such limits are even

Cite as: 563 U. S. ____ (2011) 3

Syllabus

remotely discernible in the statutory text.

The Chamber’s reliance on IRCA’s legislative history to bolster its

textual and structural arguments is unavailing given the Court’s

conclusion that Arizona’s law falls within the plain text of the savings

clause. Pp. 9–15.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY,

and JUSTICE ALITO, concluded in Part II–B:

The Arizona licensing law is not impliedly preempted by federal

law. At its broadest, the Chamber’s argument is that Congress in

tended the federal system to be exclusive. But Arizona’s procedures

simply implement the sanctions that Congress expressly allowed the

States to pursue through licensing laws. Given that Congress spe

cifically preserved such authority for the States, it stands to reason

that Congress did not intend to prevent the States from using appro

priate tools to exercise that authority.

And here Arizona’s law closely tracks IRCA’s provisions in all ma

terial respects. For example, it adopts the federal definition of who

qualifies as an “unauthorized alien,” compare 8 U. S. C. §1324a(h)(3)

with Ariz. Rev. Stat. Ann. §23–211(11); provides that state investiga

tors must verify the work authorization of an allegedly unauthorized

alien with the Federal Government, making no independent deter

mination of the matter, §23–212(B); and requires a state court to

“consider only the federal government’s determination,” §23–212(H).

The Chamber’s more general contention that the Arizona law is

preempted because it upsets the balance that Congress sought to

strike in IRCA also fails. The cases on which the Chamber relies in

making this argument all involve uniquely federal areas of interest,

see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341.

Regulating in-state businesses through licensing laws is not such an

area. And those cases all concern state actions that directly inter

fered with the operation of a federal program, see, e.g., id., at 351.

There is no similar interference here.

The Chamber asserts that employers will err on the side of dis

crimination rather than risk the “ ‘business death penalty’ ” by “hir

ing unauthorized workers.” That is not the choice. License termina

tion is not an available sanction for merely hiring unauthorized

workers, but is triggered only by far more egregious violations. And

because the Arizona law covers only knowing or intentional viola

tions, an employer acting in good faith need not fear the law’s sanc

tions. Moreover, federal and state antidiscrimination laws protect

against employment discrimination and provide employers with a

strong incentive not to discriminate. Employers also enjoy safe har

bors from liability when using E-Verify as required by the Arizona

law. The most rational path for employers is to obey both the law

4 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Syllabus

barring the employment of unauthorized aliens and the law prohibit

ing discrimination. There is no reason to suppose that Arizona em

ployers will choose not to do so. Pp. 15–22.

THE CHIEF JUSTICE delivered the opinion of the Court with respect

to Part III–A, concluding that Arizona’s E-Verify mandate is not im

pliedly preempted.

Arizona’s requirement that employers use E-Verify is not impliedly

preempted. The IIRIRA provision setting up E-Verify contains no

language circumscribing state action. It does, however, constrain

federal action: absent a prior violation of federal law, “the Secretary

of Homeland Security may not require any person or . . . entity” out

side the Federal Government “to participate in” E-Verify. IIRIRA,

§402(a), (e). The fact that the Federal Government may require the

use of E-Verify in only limited circumstances says nothing about

what the States may do. The Government recently argued just that

in another case and approvingly referenced Arizona’s law as an ex

ample of a permissible use of E-Verify when doing so.

Moreover, Arizona’s use of E-Verify does not conflict with the fed

eral scheme. The state law requires no more than that an employer,

after hiring an employee, “verify the employment eligibility of the

employee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And

the consequences of not using E-Verify are the same under the state

and federal law—an employer forfeits an otherwise available rebut

table presumption of compliance with the law. Pp. 23–24.

THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY,

and JUSTICE ALITO, concluded in Part III–B:

Arizona’s requirement that employers use E-Verify in no way ob

structs achieving the aims of the federal program. In fact, the Gov

ernment has consistently expanded and encouraged the use of E-

Verify, and Congress has directed that E-Verify be made available in

all 50 States. And the Government has expressly rejected the Cham

ber’s claim that the Arizona law, and those like it, will overload the

federal system. Pp. 24–25.

ROBERTS, C. J., delivered the opinion of the Court, except as to Parts

II–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion

in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and con

curred in the judgment. BREYER, J., filed a dissenting opinion, in which

GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN,

J., took no part in the consideration or decision of the case.

Cite as: 563 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

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 employ

ers 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 provi

sions of Arizona law. Because we conclude that the State’s

licensing provisions fall squarely within the federal stat

ute’s savings clause and that the Arizona regulation does

——————

*JUSTICE THOMAS joins Parts I, II–A, and III–A of this opinion and

concurs in the judgment.

2 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

not otherwise conflict with federal law, we hold that the

Arizona law is not preempted.

I

A

In 1952, Congress enacted the Immigration and Nation

ality 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 natu

ralization” 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 provi

sions during that same time period proscribing the em

ployment of unauthorized aliens.1

We first addressed the interaction of federal immigra

tion law and state laws dealing with the employment of

unauthorized aliens in De Canas, 424 U. S. 351. In that

——————

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.

Cite as: 563 U. S. ____ (2011) 3

Opinion of the Court

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 know

ing employment . . . of persons not entitled to lawful resi

dence 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] employ

ment 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 Immi

gration 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 unauthor

ized 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 au

thorized 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, resi

dent 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 em

ployer must attest under penalty of perjury on Depart

ment of Homeland Security Form I–9 that he “has verified

4 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

that the individual is not an unauthorized alien” by re

viewing 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 enforce

ment of” IRCA and other specified provisions of federal

law. §1324a(b)(5).

Employers that violate IRCA’s strictures may be sub

jected to both civil and criminal sanctions. Immigration

and Customs Enforcement, an entity within the Depart

ment of Homeland Security, is authorized to bring charges

against a noncompliant employer under §1324a(e). De

pending 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 prose

cuted, 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 em

ployment 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 Im

Cite as: 563 U. S. ____ (2011) 5

Opinion of the Court

migration 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 em

ployer 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 unsuc

cessful, his employment must be terminated or the Fed

eral Government must be informed. See ibid.

In the absence of a prior violation of certain federal

laws, IIRIRA prohibits the Secretary of Homeland Secu

rity from “requir[ing] any person or . . . entity” outside the

Federal Government “to participate in” the E-Verify pro

gram, §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 pro

hibition, §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

6 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

aliens through, among other things, “licensing and similar

laws,” 8 U. S. C. §1324a(h)(2).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 inten

tionally 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 Fed

eral 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.

——————

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).

Cite as: 563 U. S. ____ (2011) 7

Opinion of the Court

§1373(c) in “determining whether an employee is an unau

thorized 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 unauthor

ized 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 unau

thorized alien performed work.” §23–212(F)(2).

For a first intentional violation, the court must order

the employer to terminate the employment of all unau

thorized 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–

8 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

214(A).3 “[P]roof of verifying the employment authoriza

tion of an employee through the e-verify program creates a

rebuttable presumption that an employer did not know

ingly 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 contrac

tors, and the director of the Arizona Department of Reve

nue (collectively Arizona).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

——————

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).

4 No suits had been brought under the Arizona law when the com

plaint 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).

Cite as: 563 U. S. ____ (2011) 9

Opinion of the Court

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, pur

ports 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,

10 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

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 per

mit, certificate, approval, registration, charter, member

ship, 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 incorpo

ration 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” authoriza

tion “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

Cite as: 563 U. S. ____ (2011) 11

Opinion of the Court

regulating articles of incorporation, partnership certifi

cates, 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).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 re

vokes those very licenses something else altogether.

——————

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 hy

potheticals; 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 permis

sions 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 [corpora

tion] 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) (describ

ing when transaction privilege tax licenses are required).

12 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

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 be

cause 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 sanc

tions only after a federal IRCA adjudication, just as ad

verse 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 contin

gent on prior federal adjudication, or indeed about state

licensing processes at all. The simple fact that federal law

creates procedures for federal investigations and adjudica

tions 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 dif

ferent unauthorized alien employment laws. The conform

Cite as: 563 U. S. ____ (2011) 13

Opinion of the Court

ing 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 Con

gress’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 contract

ing licensees. AWPA specifically recognized that federal

regulation of farm contracting licensing was only “in

tended 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 con

tractor 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

14 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of the Court

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 statu

tory 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).6

——————

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

Cite as: 563 U. S. ____ (2011) 15

Opinion of ofOBERTS, C. J.

Opinion R the Court

IRCA expressly preempts some state powers dealing

with the employment of unauthorized aliens and it ex

pressly preserves others. We hold that Arizona’s licensing

law falls well within the confines of the authority Con

gress 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

——————

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 differ

ent 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.

16 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 resi

dence” or not otherwise authorized by federal law to be

employed) with Ariz. Rev. Stat. Ann. §23–211(11) (adopt

ing 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 Govern

ment, 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.7

——————

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 “en

sur[e] that the employer has an opportunity to rebut the evidence

presented to establish a worker’s unlawful status.” Brief for Respon

dents 49 (emphasis added). Only in that sense is the federal determi

nation a “rebuttable presumption.” See Tr. of Oral Arg. 46–47. Giving

Cite as: 563 U. S. ____ (2011) 17

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 ques

tion 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 unau

thorized 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 contin

ues 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).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

——————

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.

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.

18 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 verifica

tion] 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”).9 And both the federal

and Arizona law accord employers a rebuttable presump

tion 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 Cham

ber 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

——————

9 The Chamber contends that the Arizona law conflicts with federal

law because IRCA prohibits the use of the I–9 form and “any informa

tion 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 de

scriptions of office policy.” Brief for Respondents 52; see Tr. of Oral

Arg. 33.

Cite as: 563 U. S. ____ (2011) 19

Opinion of ofOBERTS, C. J.

Opinion R the Court

reflects Congress’s careful balancing of several policy

considerations—deterring unauthorized alien employ

ment, 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) (presiden

tial 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) (regula

tion 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 pro

gram. 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

20 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 lever

age” 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 sanc

tions. But they are typical attributes of a licensing re

gime. 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 with

draw 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 employ

ers will err on the side of discrimination rather than risk

Cite as: 563 U. S. ____ (2011) 21

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 termina

tion is not an available sanction simply for “hiring unau

thorized workers.” Only far more egregious violations of

the law trigger that consequence. The Arizona law covers

only knowing or intentional violations. The law’s perma

nent licensing sanctions do not come into play until a

second knowing or intentional violation at the same busi

ness 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 fur

ther 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 inten

tionally 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

22 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 unauthor

ized aliens, and the state law here simply seeks to enforce

that ban.

Implied preemption analysis does not justify a “free

wheeling 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 judg

ment); see Silkwood v. Kerr-McGee Corp., 464 U. S. 238,

256 (1984). Our precedents “establish that a high thresh

old 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.

Cite as: 563 U. S. ____ (2011)

23

Opinion of the Court

III

The Chamber also argues that Arizona’s requirement

that employers use the federal E-Verify system to deter

mine 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 Home

land Security.” Defendants’ Reply Memorandum in Sup

port of Their Motion for Summary Judgment in No. 8:08–

cv–03444 (D Md.), p. 7 (emphasis added), appeal dism’d,

24 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of ofOBERTS, C. J.

Opinion R the Court

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 em

ployment 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).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 oper

ating within its borders use E-Verify in no way obstructs

achieving those aims.

In fact, the Federal Government has consistently ex

panded 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

——————

10 Arizona has since amended its statute to include other conse

quences, such as the loss of state-allocated economic development

incentives. See 2008 Ariz. Sess. Laws ch. 152. Because those provi

sions 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.

Cite as: 563 U. S. ____ (2011) 25

Opinion of ofOBERTS, C. J.

Opinion R the Court

2012.11 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 Con

gress’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 Home

land Security, “the E-Verify system can accommodate the

increased use that the Arizona statute and existing simi

lar laws would create.” Brief for United States as Amicus

Curiae 34. And the United States notes that “[t]he gov

ernment continues to encourage more employers to par

ticipate” in E-Verify. Id., at 31.

The Chamber has reservations about E-Verify’s reliabil

ity, 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 partici

pants’ 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 Home

land Security, U. S. Citizenship and Immigration Services,

——————

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 Appropria

tions Act, 2009, Div. A, §143, 122 Stat. 3580; Department of Homeland

Security Appropriations Act of 2010, §547, 123 Stat. 2177.

26 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

Opinion of ofOBERTS, C. J.

Opinion R the Court

E-Verify User Manual for Employers 4 (Sept. 2010).12

* * *

IRCA expressly reserves to the States the authority to

impose sanctions on employers hiring unauthorized work

ers, 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 Gov

ernment’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

——————

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%.

Cite as: 563 U. S. ____ (2011) 27

Opinion of ofOBERTS, C. J.

Opinion R the Court

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.

Cite as: 563 U. S. ____ (2011) 1

BREYER, J., dissenting

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)

2 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

(excepting professional licenses, and water and environ

mental 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 work

ers 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 Admin

istrative Procedure Act). But neither dictionary defini

tions 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 po

liceman stops the car and asks for a license. Context tells

all of us that “licensing” as used in the Act does not in

clude marriage licenses or the licensing of domestic ani

mals. 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).

Cite as: 563 U. S. ____ (2011)

3

BREYER, J., dissenting

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 “licens

ing” 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 disfavor

ing job applicants who appear foreign. Reiterating long

standing antidiscrimination concerns, the House Commit

tee 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 mem

4 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

bers. 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 charac

teristics.” H. R. Rep. No. 99–682, at 68.

See also 42 U. S. C. §2000e–2(a)(1) (making it an “unlaw

ful 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 pass

port, or a driver’s license along with a Social Security

card) that tend to confirm the worker’s identity and em

ployability. §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

Cite as: 563 U. S. ____ (2011) 5

BREYER, J., dissenting

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 rebut

table 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 mecha

nism. The Act directs the Attorney General to establish a

single set of procedures for receiving complaints, investi

gating 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 neces

sary evidence and witnesses, §1324a(e)(2), and the em

ployer 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 employ

ment restrictions range from $375–$3,200 per worker,

and rise to $3,200–$16,000 per worker for repeat offend

ers. §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

6 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

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 employ

ment and antidiscrimination provisions together by pro

viding that, should the antihiring provisions terminate,

the antidiscrimination provisions will also terminate,

§1324b(k), “the justification for them having been re

moved,” 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 for

bids 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 sub

jects 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

Cite as: 563 U. S. ____ (2011) 7

BREYER, J., dissenting

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 ad

mitted that they applied the I–9 requirement “only to

foreign-looking or foreign-sounding persons,” and 22 per

cent of Texas employers reported that they “began a prac

tice to (1) hire only persons born in the United States or

(2) not hire persons with temporary work eligibility docu

ments” 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 employ

ers 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 sanc

tions, 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 (anony

mously or otherwise) to the state attorney general (or any

county attorney), who then “shall investigate,” Ariz. Rev.

8 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

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 lan

guage, 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 investiga

tion 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 frac

tion 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 subse

quent review in the federal administrative process deter

mined 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

Cite as: 563 U. S. ____ (2011) 9

BREYER, J., dissenting

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 govern

ment’s determination pursuant to 8 [U. S. C.] §1373(c).”

Ariz. Rev. Stat. Ann. §23–212(H). But the federal provi

sion 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 im

poses 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 Gov

ernment? 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 neces­

sary to receive the benefit of the affirmative defense. Ante,

at 18, n. 9. But the I–9 form would surely be the em

ployer’s most effective evidence. See also post, at 11

(SOTOMAYOR, J., dissenting) (suggesting that the unavail

ability 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

10 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

of a defense when it immediately follows (1) its statement

that “the court shall consider only the federal govern

ment’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 rebut

tal 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 ordi

nary penalties to the range of a few thousand dollars per

illegal worker, want to permit far more drastic state pen

alties that would directly and mandatorily destroy entire

businesses? Why would Congress, after carefully balanc

ing sanctions to avoid encouraging discrimination, want to

allow States to destroy that balance? Why would Con

gress, after creating detailed procedural protections for

employers, want to allow States to undermine them? Why

Cite as: 563 U. S. ____ (2011) 11

BREYER, J., dissenting

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, part

nership certificates, in light of the partners’ hiring prac

tices of any kind, much less the hiring of unauthorized

aliens. See Ariz. Rev. Stat. Ann. §29–308 (limited part

nership formed upon the filing of a certificate of partner

ship 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 rea

sonably practicable to carry on the business in conformity

with the partnership agreement”).

To read the exception as covering laws governing corpo

rate charters and partnership certificates (which are not

usually called “licensing” laws) is to permit States to turn

12 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

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 be

come one simply by using it as a sanction for hiring unau

thorized 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) (provid

ing 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 dis

crimination 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 “licens

ing” 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 pri

Cite as: 563 U. S. ____ (2011) 13

BREYER, J., dissenting

marily to the licensing of firms in the business of recruit

ing or referring workers for employment, such as the state

agricultural labor contractor licensing schemes in exis

tence 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 agricul

tural 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 stat

utes 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 contrac

tor’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 forbid

den 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 con

tracting 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 licens

14 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

ing 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 unau

thorized 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 employ

ers) 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

Cite as: 563 U. S. ____ (2011) 15

BREYER, J., dissenting

not omit this matter. It answers the coexistence question

directly with the parenthetical phrase we are now consid

ering, 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 work

ers 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) (de

scribing how farmers who relied on contractors risked

losing their labor forces to immigration raids). Dual en

forcement would not create a federal/state penalty dispar

ity, for federal systems as well as state systems provide for

license revocation. Experience had shown that dual en

forcement had not created any serious conflict or other

difficulty. And in light of the specialized nature and com

paratively small set of businesses subject to dual enforce

ment, 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 licens

16 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

ing 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 interpreta

tion, 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, unauthor

ized 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 provi

sions 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 em

ployment 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 Ari

zona employers. The federal law governing the E-Verify

program, however, creates a program that is voluntary.

Cite as: 563 U. S. ____ (2011) 17

BREYER, J., dissenting

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 conse

quently pre-empted.

The federal statute itself makes clear that participation

in the E-Verify program is voluntary. The statute’s rele

vant section bears the title “Voluntary Election to Partici

pate 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 designa

tion of local officials to advertise the “voluntary nature” of

the program). It adds that employers may “terminate”

their “election” to participate by following certain proce

dures. §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 volun

tary 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 Nu

mident File 12 (2006) (hereinafter Social Security Report)

18 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

(estimating that 3.3 million naturalized citizens are mis

classified in a Social Security database used by E-Verify);

GAO, Employment Verification: Federal Agencies Have

Taken Steps to Improve E-Verify, but Significant Chal

lenges 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 mak

ing the program mandatory would have been hugely ex

pensive. See post, at 16 (SOTOMAYOR, J., dissenting).

The E-Verify program is still a pilot program, as a mat

ter 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

Cite as: 563 U. S. ____ (2011) 19

BREYER, J., dissenting

terms under which Congress created that program, Ari

zona’s mandatory state law simply ignores both the fed

eral 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 accu

racy, but (b) that problems remain. See, e.g., Social Secu

rity 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 data

bases or on identification documents”). And it is up to

Congress, not to Arizona or this Court, to determine when

20 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

BREYER, J., dissenting

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 voluntar

ily 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 noth

ing 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 Con

gress’ 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 presump

tion that a State may modify the operation of a uniquely

federal program like E-Verify. Cf. Buckman Co. v. Plain­

tiffs’ 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.

Cite as: 563 U. S. ____ (2011) 1

SOTOMAYOR, J., dissenting

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 “com­

prehensive 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 them­

selves 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 unauthor­

ized alien, and having withheld from the States the infor­

mation 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 under­

stood to preserve States’ authority to impose licensing

sanctions after a final federal determination that a person

has violated IRCA by knowingly employing an unauthor­

ized alien. Because the Legal Arizona Workers Act in­

2 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

stead 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 provi­

sion 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 partici­

pation 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.”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 paren­

thetical 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 pro­

——————

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).

Cite as: 563 U. S. ____ (2011) 3

SOTOMAYOR, J., dissenting

hibited 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 nar­

rowly, 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 encom­

pass 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 omit­

ted; 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) (con­

struction of a statutory term “must, to the extent possible,

ensure that the statutory scheme is coherent and consis­

tent”); Davis v. Michigan Dept. of Treasury, 489 U. S. 803,

809 (1989) (“[St]tatutory language cannot be construed in

4 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

a vacuum. It is a fundamental canon of statutory con­

struction that the words of a statute must be read in their

context and with a view to their place in the overall statu­

tory scheme”).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 know­

ing 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 con­

finement 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).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 Cen

ter 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)

——————

2 Asthese 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.

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 agricul­

tural labor contractors. See ante, at 13–14 (BREYER, J., dissenting).

Cite as: 563 U. S. ____ (2011) 5

SOTOMAYOR, J., dissenting

(“[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 major­

ity 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 struc­

tured IRCA’s provisions in a number of ways to accom­

plish 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, re­

cruitment 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 Govern­

ment enforcement of IRCA’s prohibition on the knowing

employment of unauthorized aliens. IRCA instructs the

6 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

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 Attor­

ney General to establish procedures for receiving com­

plaints, investigating complaints having “a substantial

probability of validity,” and investigating other violations.

§1324a(e)(1); see also 8 CFR §274a.9 (2010). Upon con­

cluding that a person has violated IRCA, the Attorney

General must provide the person with notice and an op­

portunity 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 hear­

ing, the ALJ is required to hold a hearing and, upon find­

ing 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 investi­

gated” 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.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

——————

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.

Cite as: 563 U. S. ____ (2011) 7

SOTOMAYOR, J., dissenting

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. Nota­

bly, 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 fed

eral 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 authoriza­

tion 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 ascer­

tain the immigration status of aliens applying for benefits

under programs such as Medicaid and the food stamp

8 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

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 provi­

sion governing employment of unauthorized aliens, sug­

gests strongly that Congress did not contemplate any role

for the States in adjudicating questions regarding em­

ployment of unauthorized aliens. Cf. Bates v. United

States, 522 U. S. 23, 29–30 (1997) (“Where Congress in­

cludes 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”).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.6 More

——————

5 For example, spouses and minor children of persons working in the

United States as exchange visitors must apply for employment authori­

zation even though they have lawful immigration status as dependents

of the exchange visitor. See 8 CFR §274a.12(c)(5).

6 In its capacity as an employer, a State may be able to access in­

formation regarding the work authorization status of its employees

Cite as: 563 U. S. ____ (2011) 9

SOTOMAYOR, J., dissenting

importantly, §1373(c) was enacted in 1996, see §642(c),

110 Stat. 3009–707, and thus says nothing about Con­

gress’ intent when it enacted IRCA’s saving clause a dec­

ade 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, unau­

thorized 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 con­

text 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 govern­

ment’s determination pursuant to [§]1373(c)” in “determin­

——————

through use of E-Verify.

10 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

ing whether an employee is an unauthorized alien,” e.g.,

§23–212(H).7 Putting aside the question whether §1373(c)

actually provides access to work authorization informa­

tion, §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 authori­

zation 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 em­

ployed an unauthorized alien?

The Arizona Act’s reliance on §1373(c) highlights the

anomalies inherent in state schemes that purport to adju­

dicate 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 authori

zation 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 immigra­

tion status, those authorized for employment with a spe­

cific employer incident to immigration status, and those

who must apply for work authorization). And, as dis­

cussed 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

——————

7 However, the “federal government’s determination creates [only] a

rebuttable presumption of the employee’s lawful status.” E.g., §23–

212(H).

Cite as: 563 U. S. ____ (2011) 11

SOTOMAYOR, J., dissenting

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 immigra­

tion 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 unauthor­

ized 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 verifica­

tion 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 “uni­

12 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

for[m]” enforcement of “the immigration laws of the

United States,” IRCA §115, 100 Stat. 3384, I cannot be­

lieve that Congress intended for the 50 States and count­

less localities to implement their own distinct enforcement

and adjudication procedures for deciding whether employ­

ers 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. Hav­

ing carefully constructed a uniform federal scheme for

determining whether a person has employed an unauthor­

ized 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 Ari­

zona’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 determi­

nation, withholding from the States the information nec­

essary 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 refer­

Cite as: 563 U. S. ____ (2011) 13

SOTOMAYOR, J., dissenting

ring for a fee an unauthorized alien.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 “care­

ful 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 Gov­

ernment the authority to impose civil and criminal sanc­

tions on persons who employ unauthorized aliens. Licens­

ing 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

——————

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 Agricul­

tural 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 adminis­

trative 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.

14 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

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 unau­

thorized 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 con­

gressional 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 reme­

dies”); 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 comprehen­

sive 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 necessar­

ily informs the scope of this clause. For all the reasons

stated, the only interpretation of that clause that is consis­

tent 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 Ari­

zona 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

Cite as: 563 U. S. ____ (2011) 15

SOTOMAYOR, J., dissenting

state courts must find that an employer has employed an

unauthorized alien before imposing the sanctions enumer­

ated in the Act. §§23–212(F), 23–212.01(F). Because the

Act’s sanctions are not premised on a final federal deter­

mination 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.9

II

I agree with the conclusion reached by JUSTICE BREYER

in Part IV of his dissenting opinion that federal law impli­

edly 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 addi­

tional 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. Na

tional 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

——————

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).

16 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

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 Govern­

ment and private parties by mandating use of a federally

created and administered resource. This case thus impli­

cates 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’ deci­

sion 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 Insti­

tute for Survey Research, Temple Univ., and Westat, INS

Basic Pilot Evaluation: Summary Report 38 (2002) (con­

cluding 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

Cite as: 563 U. S. ____ (2011) 17

SOTOMAYOR, J., dissenting

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 mak­

ing decisions for the Federal Government that directly

affect expenditure and depletion of federal resources.10

The majority highlights the Government’s statement in

its amicus brief that “ ‘the E-Verify system can accommo­

date the increased use that the Arizona statute and exist­

ing similar laws would create.’ ” Ante, at 25 (quoting Brief

for United States as Amicus Curiae 34). But “[t]he pur­

pose 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.11

Congressional intent controls, and Congress has repeat­

edly decided to keep the E-Verify program voluntary.

Because state laws requiring use of E-Verify frustrate

the significant policy objectives underlying this decision,

——————

10 In Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___

(2011) (slip op., at 10), we held that the Federal Government’s judg­

ment 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.

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).

18 CHAMBER OF COMMERCE OF UNITED STATES OF

AMERICA v. WHITING

SOTOMAYOR, J., dissenting

thereby imposing explicitly unwanted burdens on the

Federal Government, I would hold that federal law impli­

edly pre-empts the Arizona requirement.

* * *

For these reasons, I cannot agree with either of the

Court’s holdings in this case. I respectfully dissent.