November 12, 2010
On October 28, 2010, IRLI filed a friend of the court brief (attached here) with the United States Supreme Court, supporting the Arizona E-verify law. In 2006, with the help of IRLI, State Senator Russell Pearce drafted the Arizona Legal Workers Act, a first-of-its kind State law which required virtually all employers in Arizona to enroll in and utilize the federal E-verify system. E-verify is a federal database that allows employers to electronically verify whether a newly hired employee is authorized to work in the United States. Janet Napolitano, the Governor of Arizona at the time, signed the law in 2007.
A coalition of special interest organizations from across the political spectrum, including the United States Chamber of Commerce and the ACLU, immediately challenged the law, claiming that it was, among other things, preempted by federal law. The Arizona federal district Court upheld constitutionality of the Arizona Legal Workers Act, and on appeal that ruling was sustained by a unanimous opinion of the Ninth Circuit Court of Appeals. The Chamber of Commerce, the ACLU, and others, then petitioned the United States Supreme Court for review of the decision, where they were joined by the Obama administration in their attempt to deny Arizona the right to ensure that its employers are not hiring unauthorized workers. The Supreme Court accepted the case for review on June 28, 2010.
In their briefs, the Chamber of Commerce and the United States both argue that the Immigration Reform and Control Act of 1986 (“IRCA”), which, imposed sanctions on employers who hired unauthorized workers and requires employers to verify that their workers are lawfully in the United States, preempts states from ensuring employers are complying with that federal law through its own State licensing system, on the theory that IRCA sought to “balance” numerous goals besides just preventing illegal immigration through employer sanctions. The Chamber and the United States also argue that Arizona cannot mandate E-verify because the United States Congress has not mandated its use.
However, IRCA includes a “savings clause” which expressly allows states to sanction employers for employing unauthorized aliens through “licensing and similar laws.” Nothing in the federal E-verify law says anything about preventing States from mandating E-verify.
IRLI’s amicus brief supporting Arizona provides a detailed analysis of IRCA’s Congressional history. That history reveals that Congress not only intended that employer sanctions and verification of employment status would be used primarily to stop illegal immigration, but that states are permitted to assist enforcing the employer sanctions and verification of authorized status, by using their own state licensing laws. The Supreme Court is scheduled to hear oral arguments for this case on December 8, 2010.
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