- Federal Litigation over Arizona's law mandating E-Verify
In 2007, Arizona passed a law mandating
use of E-Verify by all employers in the State beginning January 1, 2008.
(This law was updated in 2010.) Business and immigration advocates filed
two sets of lawsuits to prevent enforcement, which gained national attention.
The first lawsuit was dismissed by Judge Neil Wake on December 7, 2007.
The judge said the plaintiffs had filed against the wrong defendants
-- the Governor and Attorney General -- instead of the state county
attorneys who will actually enforce the law. The judge also faulted
the business groups' challenge because they hadn't shown that they faced
imminent crackdowns. The employers refiled on Monday, December 10, 2007
to correct the technical defects and hopefully get a ruling on the merits
of the lawsuit.
Civil rights and immigrant advocates also refiled on December 12, 2007,
but with a different set of named defendants and a different legal theory
than the business groups. Both cases were heard by Judge Wake. Preliminary
injunctive relief was denied as to all plaintiffs on December 21, 2007,
explained by the Court
here, as was a stay of enforcement of the Arizona Employer Sanctions
Law pending an appeal of the first case that had been dismissed on December
7, 2007, explained
by the Court here.
On February 7, 2008, Judge Wake entered a dismissal of the second suit,
thus denying any relief to those who challenged the state employer sanctions
law, which is formally known as the Legal Arizona Workers Act, and which
will be referred to as the employers sanctions for the rest of this
discussion. The dismissal was appealed.
In a 37 page opinion, which can be viewed here,
the Judge made these points:
1. Federal immigration law expressly exempts licensing sanctions by
states to control employment of illegal aliens.
2. Federal actions regarding immigration rules do not have to be fully
completed before state sanctions can be invoked.
3. The structure and spirit of federal immigration laws permit a generous
interpretation of states' powers over illegal immigration through licensing.
4. The Arizona employer sanctions law does not infringe upon federal
powers over immigration and is consistent with the intent of the immigration
laws.
The Court made a detailed and ground-breaking analysis of due process
protections through an interplay of the e-Verify computerized system,
the procedures to contest the computerized records made available to
a protesting employee under federal rules, and the court procedures
under state law to suspend or revoke a business license. The Court stated
first that under the Arizona state law, a superior court judge hearing
a case of unauthorized employment was not restricted in the type of
evidence it could consider, thus providing at the state hearing level
all necessary due process protections. Although unfavorable result of
a computerized check under e-Verify created a presumption against employment
status, it was rebuttable, and an employer could introduce evidence
in a state court proceeding to show the worker was in fact authorized
or the employer lacked knowledge of the unlawful status, either of which
was a valid defense. Secondly, even if the state court were bound by
the results of e-Verify, procedures for employees to straighten out
a non-verification result by contesting it and working with the agency
to correct it, also met the requirements of due process. Therefore,
the procedural due process arguments used by the Plaintiffs to attack
the Arizona state law as unconstitutional on its face were not well-taken,
and were overruled.
The Court suggested without deciding that federal law may allow an
employee to contest a final non-confirmation determination obtained
with e-Verify by invoking the provisions of the federal administrative
procedures act.
On February 20, 2008, the Court entered a supplemental order refusing
to stay enforcement of the law pending appeal of the second suit dismissal,
as requested by the plaintiffs. The Court held that the plaintiff business,
immigration and civil rights groups had not established a likelihood
that they would win on appeal and ruled that such an injunction would
undermine the results obtained so far from the employers sanction law.
The judge's order in its entirety can be viewed here.
The Plaintiffs appealed to the United States Court of Appeals for the
Ninth Circuit, but the appellate court denied both a
temporary order pending appellate review on February 28, 2008, and
relief
on the merits on September 17, 2008.
In the ruling on the merits, the Ninth Circuit stated that the Arizona
law was constitutional on its face (that is, in theory) but left open
any future ruling on how it might be enforced (in practice).
A
Petition for Writ of Certiorari was filed with the United States Supreme
Court and a
brief in opposition was filed by the State of Arizona and a reply
brief was submitted by the Plaintiffs. The case caption is entitled
Chamber of Commerce of the United States v. Candelaria. The Supreme
Court asked the Obama Administration to brief the issues, which include
whether federal law expressly pre-empts Arizona state law, whether requiring
mandatory enrollment in e-Verify exceeds state and local governmental
powers, and whether the doctrine of implied pre-emption invalidates
the Arizona state law. The
Attorney General did file a brief which suggested that the Supreme
Court review only the first issue -- of express pre-emption, on the
theory that an exception under the licensing powers of the state was
allowed to swallow a rule that the federal government has exclusive
power over immigration.
The Supreme Court granted
certiorari on June 28, 2010 as to all questions presented.
If you are an employer who has questions about verifying the immigration
status of new hires, or are a federal contractor with questions about
new and existing hires and their immigration status, please contact
Messing Law Offices for a free seven minute
telephonic consultation or to schedule an initial consultation.
- Missouri city ordinance litigation
Though not technically a ruling over the mandatory use of e-verify,
the U.S. District Court for the Eastern District of Missouri upheld
city ordinances that invoked licensing powers over illegal immigration
and provided a safe harbor for employers who obtained employment verification
through e-Verify, citing the Arizona's district courts earlier rulings,
and using many of the same reasons that were later advanced by the Arizona
federal district court in its February 7, 2008 decision on a state's
employer sanctions law. Read the Missouri opinion itself here.
- California Federal No-Match Rule Litigation
By Complaint dated August 28, 2007, a coalition of immigration advocacy,
civil rights, and union attorneys filed a complaint seeking a federal court order
prohibiting enforcement of the 2007 SSA/
DHS No-Match Rule, which by its terms would require employers who
received a notice of a mis-match between submitted W-2 or employment
authorization forms and government database records to require corrective
actions of employees within a three month period or be treated as having
hired unauthorized workers thereafter under federal law, exposing the
employers to monetary sanctions. The U.S. District Court for the Northern
District of California issued a temporary
restraining order and a preliminary
injunction. While this is not technically a final ruling on the
merits, the preliminary injunction bars enforcement nationwide of the
2007 SSA/ DHS No-Match Rule and subsequent amendments
to it. (
(View the text of a March 2008 SSA No Match Proposed Rule here.)
The SSA has announced
that it will continue not to send SSA No-Match letters until the California
litigation is resolved.
- Federal Litigation over Illinois' Law Prohibiting Use of E-Verify
until certain conditions are met.
On September 25, 2007, the Department of Homeland Security sued the
State of Illinois in federal court to prevent enforcement of a state
law prohibiting employers from using the E-Verify system, until
certain performance levels are reached or the program becomes federally
mandated. View a copy of the complaint here.
Illinois stipulated
not to enforce the law until the litigation was resolved.
On March 12, 2009, the Federal District Court for the Central District
of Illinois ruled the Illinois state law invalid under the Supremacy
Clause of the U.S. Constitution. View
a copy of the decision here.
- Maryland Contractor Federal Litigation
On December 23, 2008, the National Chamber of Commerce with other
entities filed suit in the Maryland Federal District Court challenging
new regulations that require government contractors to verify and reverify
employees involved in certain federal government contract work. View
a copy of the complaint here. According to the American Immigration
Lawyer's Association, the U.S. Department of Justice has preliminary
agreed to suspend enforcement of the rule from the anticipated date
of January 15, 2009 to February 20, 2009, presumably to allow for court
consideration of the lawsuit and/or possible reconsideration by the
new Administration.
On August 25, 2009, Judge Alexander Williams of the U.S. District Court
for Maryland dismissed the suit, holding that there was no legal or
factual issue for trial. The Court held that a Presidential Executive
Order required use of e-Verify for federal procurement purposes and
no contractor was required to use the system. It could simply refrain
from seeking federal contracts. Furthermore, nothing in immigration
statutes enacted by Congress prevented the President from enacting an
Executive Order that required the use of e-Verify by government contractors.View
a copy of the full decision here.
The court ruling paves the way for the entry in force of a federal
rule on the use of e-Verify by federal contractors, which had been delayed
since January because of the pending case. The rule implements an executive
order originally enacted by the previous administration that mandates
contractor use the system to verify employment status on federal government
procured work. View more information about
E-Verify.
Common themes in all suits are whether E-Verify is accurate and reliable, and
the extent to which the federal government and the various states can
regulate immigration and employment relations within the United States.
If you are an employer who has questions about verifying the immigration
status of new hires, or are a federal contractor with questions about
new and existing hires and their immigration status, please contact Messing
Law Offices for a free seven minute telephonic consultation or to
schedule an initial consultation.