I have already analyzed in two posts why Texas should be able to illustrate concrete injuries as a result of the work authorizations resulting from DAPA. A colleague, ProfessorPeter Margulies, suggested another ground which buttresses this claim is Chamber of Commerce v. Whiting (2011). The Chief Justice’s majority opinion recognized that the states retain their authority under the police power for licensing, even in an area that is solely the provence of the federal government–immigration.

We first addressed the interaction of federal immigration law and state laws dealing with the employment of unauthorized aliens in De Canas, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43. In that case, we recognized that the “[p]ower to regulate immigration is unquestionably … a federal power.” Id., at 354, 96 S.Ct. 933. 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, 96 S.Ct. 933, that “prohibit[ing] the knowing employment … of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [the State’s] police power,” ibid., and that the Federal Government had “at best” expressed “a peripheral concern with [the] employment of illegal entrants” at that point in time, id., at 360, 96 S.Ct. 933. 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.

The Court found that even in areas where Congress has not expressly preempted state authority, the states retain the power to enforce licensing laws to the extent that the states rely on the federal standard of determining legal status for aliens.

IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others. We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.

In this case, the Arizona law “allows Arizona courts to suspend or revoke the licenses necessary to do business in the State if an employer knowingly or intentionally employs an unauthorized alien,” based on the federal standard of unauthorized alien.

And here Arizona went the extra mile in ensuring that its law closely tracks IRCA’s provisions in all material respects. The Arizona law begins by adopting the federal definition of who qualifies as an “unauthorized alien.” Compare 8 U.S.C. § 1324a(h)(3) (an “unauthorized alien” is an alien not “lawfully admitted for permanent residence” or not otherwise authorized by federal law to be employed) with Ariz.Rev.Stat. Ann. § 23–211(11) (adopting the federal definition of “unauthorized alien”); see De Canas, 424 U.S., at 363, 96 S.Ct. 933 (finding no preemption of state law that operates “only with respect to individuals whom the Federal Government has already declared cannot work in this country”).
Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, and “shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.” § 23–212(B). What is more, a state court “shall consider only the federal government’s determination” when deciding “whether an employee is an unauthorized alien.” § 23–212(H) (emphasis added). As a result, there can by definition be no conflict between state and federal law as to worker authorization, either at the investigatory or adjudicatory stage.

Even so, the states retain this authority under their police power.

But Congress expressly preserved the ability of the States to impose their own sanctions through licensing; *1980 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.”

The regulation of business licensing is still a matter of local concern, even if it involves a matter of federal concern:

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, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (presidential conduct of foreign policy); Crosby v. National Foreign Trade Council, 530 U.S. 363, 373–374, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (foreign affairs power); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 352, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (fraud on a federal agency); United States v. Locke, 529 U.S. 89, 97, 99, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) (regulation of maritime vessels); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 143–144, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (patent law). Regulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern. Furthermore, those cases all concern state actions that directly interfered with the operation of the federal program.

In other words, to the extent that the states are relying on federal definition of lawful status–and a person who is granted deferred action is vested with the authorization to work lawfully–Texas would seem to be acting within its police powers to be obligated to grant the aliens work licenses. This is a more-than-concrete injury under Massachusetts v. EPA.

License suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime. Numerous *1984 Arizona laws provide for the suspension or revocation of licenses for failing to comply with specified state laws. See, e.g., Ariz.Rev.Stat. Ann. §§ 5–108.05(D), 32–852.01(L), 32–1154(B), 32–1451(M), 41–2186 (West 2002). Federal law recognizes that the authority to license includes the authority to suspend, revoke, annul, or withdraw a license. See 5 U.S.C. § 551(9). Indeed, AWPA itself—on which the Chamber so heavily relies—provides that AWPA “certificates of registration” can be suspended or revoked for employing an unauthorized alien. 29 U.S.C. § 1813(a)(6). It makes little sense to preserve state authority to impose sanctions through licensing, but not allow States to revoke licenses when appropriate as one of those sanctions.

One key difference is that the Arizona law took the federal government’s description of a person’s lawful status without any challenge. Here, Texas challenges it.  If the states retain the authority to revoke licenses when a person lack work authorization, it stands to reason a state also has the authority to challenge a worker who does not have proper work authorization. That is, the deferred action was unconstitutional, and the resulting work authorization should not have been granted.

Further, in Whiting, Arizona required that employers consult with E-Verify to ensure that Congress’s design for work authorization was complied with.

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

Here, arguably, the Executive is disregarding Congress’s design for who should be granted work authorization. In a backwards sense, Texas’s injury results from the Executive disregarding Congress’s policy towards who should receive deferred action, and thus receive a work authorization.

The more I look into this issue, the more Texas’s injury seems to be concrete, under Massachusetts v. EPA and Chamber of Commerce v. Whiting.