Another court rejects challenge to mandatory use of E-Verify

By Jessica M. Vaughan on September 16, 2008

Yesterday, a Rhode Island judge rejected a request from the ACLU and three others to halt the state’s implementation of Governor Don Carcieri’s Executive Order requiring all state contractors, vendors, and grantees to use E-Verify, or lose their government contracts. This ruling, while preliminary, is the latest positive test of strength, both for the E-Verify program and for state action to prevent illegal employment.

The ruling is noteworthy for several reasons:

1. The court appears to have ignored the main complaints from the ACLU and other plaintiffs (a domestic violence non-profit and two college professors who have contracts with the state to provide professional services) that E-Verify is “riddled with significant flaws” and “inaccurate”. Actually, the independent evaluations of E-Verify, one by the research firm Westat and the other by the Social Security Administration’s inspector general, have found the E-Verify is remarkably accurate. (See my recent testimony for more information with links to the Westat and SSA/IG report). It provides swift confirmation for eligible workers – 99.4% are confirmed on the first try. It also accurately identifies illegal workers – of all the workers who are flagged as possibly ineligible on the first try, 95% turn out to be illegal.

2. The judge stated clearly that the Governor has the authority to require state contractors and others named in the order to use E-Verify.

3. Interestingly, the ACLU did not try to argue that the Governor’s order was pre-empted by federal law, which has been one of the most common objections that opponents of immigration law enforcement have raised against state-level immigration initiatives.

The judge did find that the state Department of Administration had erred in not using the standard rule-making procedures, which allow for public comment, before implementing the rules. Therefore, at this point, no contractors may be punished for failure to enroll (although nearly half of the contractors have already done so). The state’s lawyers are now working on an emergency rule that will go into effect for 120 days, until the formal rules can be drafted and commented upon, and finally enforced.

The ACLU is claiming victory because the rule cannot yet be enforced, but the people of Rhode Island are the real winners. Since the governor issued his executive order, 1,900 more employers have enrolled in E-Verify (there were only 221 in the state back in May, when the General Assembly nearly made mandatory for all the state’s employers). This is the main point of state laws on E-Verify – not to hunt down and punish scofflaw employers (although eventually they will be dealt with), but to nudge most employers into compliance. It’s already working; like other states that have enacted some form of mandatory E-Verify use, Rhode Island is seeing indications that illegal aliens are leaving the state.

Despite what the U.S. Chamber of Commerce has claimed in its desperate efforts to discredit the program, according to at least three surveys, the vast majority of these companies are thrilled with E-Verify, and believe it is an easy and effective way to avoid hiring illegal workers.

Topics: E-Verify