State E-Verify mandate not preempted by federal law, SCOTUS rules

By Kimberly Atkins

The Daily Record Newswire

A state law imposing sanctions on employers who hire undocumented workers and mandating the use of the federal E-Verify database is not preempted by federal immigration law, the U.S. Supreme Court has ruled.

In 2007 Arizona enacted a law subjecting companies that employ undocumented workers to penalties, including the suspension or revocation of their business licenses. The law also required employers to use the federal E-Verify system to check the immigration status of workers.

The U.S. Chamber of Commerce and a host of other groups challenged the law in federal court, arguing that it was preempted by the Immigration Reform and Control Act of 1986.

That law 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.''

A U.S. District Court held that the statute was a licensing law that fell within the ''licensing or similar laws'' savings clause of the federal statute, and that the E-Verify requirement was not impliedly preempted by federal law.

The 9th Circuit affirmed.

The U.S. Supreme Court agreed to hear the case. In a 5-3 ruling, the Court affirmed.

In an opinion written by Chief Justice John G. Roberts, the Court held that the licensing provision fell within the federal statute's savings clause.

The Court rejected the Chamber's argument that the state law was not aimed at employment licensing, but rather AT regulating immigration, since it has nothing to do with the granting of licenses.

Such an argument is ''contrary to common sense,'' Roberts wrote.

''There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.''

The Court also rejected the Chamber's claim that the E-Verify requirement was impliedly preempted because federal law makes use of the system voluntary, not mandatory.

''Arizona's use of E-Verify does not conflict with the federal scheme,'' Roberts wrote.

''The [mandatory E-Verify] 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.''

Justice Stephen Breyer filed a dissent joined by Justice Ruth Bader Ginsburg. Justice Sonia Sotomayor filed a separate dissent. Justice Elena Kagan took no part in the case's consideration.

U.S. Supreme Court. Chamber of Commerce v. Whiting, No. 09-115. May 26, 2011. Lawyers USA No. 993-2935.

Published: Thu, Jun 2, 2011