U.S. Supreme Court upholds Arizona law mandating E-Verify
June 08, 2011
In a decision that could signal an impending spread of E-Verify from state to state, the U.S. Supreme Court upheld Arizona’s law mandating that employers participate in E-Verify. See Chamber of Commerce v. Whiting. E-Verify is an electronic system employers can use to verify that those they hire are authorized to work in the U.S. The E-Verify process is in addition to the requirement that employers complete I-9s on new hires.
The Court found that the Arizona law did not generally run afoul of federal preemption because the State of Arizona requires a business license to conduct business in that state. Federal law generally defers to states with regard to licensing requirements. Federal law also did not prohibit states from mandating participation in E-Verify, and the Court noted that the federal government, in fact, encouraged participation.
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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” outside 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 example of a permissible use of E-Verify when doing so. Moreover, Arizona’s use of E-Verify does not conflict with the federal 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 rebuttable presumption of compliance with the law. Pp. 23–24. |
This leads to the somewhat curious result where the federal government has not mandated participation in E-Verify, but individual states can.
This ruling may embolden other states to adopt similar laws. To this point, E-Verify has generally been a voluntary program, other than for certain federal contractors and employers in a few select states. The U.S. Chamber of Commerce had filed the suit against Arizona challenging the law on the grounds that federal law preempted the state’s efforts. They were obviously unsuccessful. This is also one issue producing interesting allies, with business and immigrant rights groups both opposed to the proliferation of E-Verify.
Please contact Matt Raynes at our Bangor, Maine office with questions.
This alert is provided as general information, and is not a substitute for legal or other professional advice.
