Can States Mandate Use of E-Verify? Putting the Obama Administration on Record

By Janice Kephart on November 3, 2009

The Supreme Court seems increasingly interested in taking on immigration-related cases. In its last term, the Court took on four cases involving illegal aliens, and in three of them, the illegal alien won. Now the Court is asking the President Obama's appointee for Solicitor General, Elena Kagan, to produce a brief in the Ninth Circuit case that challenged the legality of Arizona's mandatory E-Verify law for businesses. The Ninth Circuit agreed with Arizona: federal immigration law does not preempt Arizona mandating use of E-Verify for businesses because there is no express legal requirement that E-Verify be wholly voluntary, as was argued by E-Verify challengers.

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The case was brought by longtime foe of E-Verify, the U.S. Chamber of Commerce. The Chamber has sued multiple states with mandatory E-Verify laws, as well as Maryland (on their federal contractor rule) based on this same argument that federal law pre-empts both state E-Verify and federal mandates for federal contractors. The Chamber did so after losing their long-standing policy arguments about how poorly E-Verify performs to the real facts about the high-performance rate of the program and its high level of acceptance by employers. However, even losing in the Ninth Circuit has not stopped the Chamber from pursuing its goals to undo E-Verify every which way they can. If states can’t mandate E-Verify use by employers, then employers the Chamber is working with primarily on this issue – the construction industry – won’t be (as easily) held accountable to federal law that prohibits hiring illegal workers. If the Chamber can get the Arizona case to the Supreme Court and win on the preemption issue, they will made serious inroads against other states who have also mandated E-Verify as well as the federal contractor rule. This creates a serious potential problem, considering the policy vacuum in which the recent Supreme Court immigration cases were decided.

The result is that the Chamber is on its last effort to undo E-Verify, seeking Supreme Court review with the hope that a new opinion will overrule the Ninth Circuit and thereby ban the growing number of states requiring use of E-Verify in some way. The number of states requiring use of E-Verify has surged in the last two years, and now includes 16 states, with other states like Ohio considering legislation. These states currently requiring use of E-Verify for some or all employers are: Arizona, Arkansas, Colorado, Georgia, Idaho, Indiana, Kansas, Minnesota, Mississippi, Missouri, North Carolina, Nebraska, Oklahoma, Rhode Island, South Carolina, and Utah.

The fact that the Court has asked Kagan to weigh in means two things: (1) the Supreme Court is considering granting the Chamber’s request to hear the case; and (2) the Obama Administration will now be put on record as to how much they truly support E-Verify.

While it is true that technically the Solicitor General should be legally objective, the role of Solicitor General is as political as the President seeks in the person that is asked to fulfill that role. The mission of the Solicitor General’s office is described as follows:

Statutory Authorization Act of June 22, 1870, states, "There shall be in the Department of Justice an officer learned in the law, to assist the Attorney General in the performance of his duties to be called the Solicitor General." The Office of the Solicitor General is tasked to conduct all litigation on behalf of the United States in the Supreme Court, and to supervise the handling of litigation in the federal appellate courts.

Elena Kagan will clearly see the political ramifications of accepting the Court's invitation to provide a federal government brief on the issue. With a long career of politically infused legal positions, most recently as Dean of Harvard Law School but for four years at the White House from 1995 to 1999, as Associate Counsel to the President (1995-96) and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99), she is well-positioned to either side-step this issue or tell us how supportive the Obama Administration really is of E-Verify.

Considering how badly this administration wants amnesty, a choice may be made to support Arizona and E-Verify as a means to an end, and because the law supports that finding. From the public’s point of view, Kagan’s decision to engage on this issue – or not – will tell us a lot about how serious the Obama Administration is about truly asserting “rule of law” in the immigration context, and the extent to which this Administration will support states that are trying to support federal immigration law.

Most everyone familiar with the legal issue of whether there is a federal immigration preemption issue here agrees that the Ninth Circuit got it right when they supported Arizona’s right to mandate E-Verify use by employers. In addition, many on the inside of this issue are aware that the Chamber has been grasping at straws for some time on this issue as well. Kagan's key client will be Homeland Secretary Napolitano, who left the governorship of Arizona less than a year ago but has only recently advocated for E-Verify. Will she stick up for her state and E-Verify? Will she push Kagan to do so? And will Kagan do it at her urging? Putting this administration on the record on E-Verify – the same administration that pushed back implementation of the federal contractor requirement to use E-Verify three times and only quietly (and recently) put any budgetary monies towards the program – poses an interesting political question for the Solicitor General: will she pass, or will she play. She's been handed the ball. Let's hope she doesn't fumble it.

Topics: E-Verify