Narrow Supreme Court Decision Opens the Door for States to Mandate Use of E-Verify

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Today, the Supreme Court handed down a 5-3 decision holding that federal law does not prevent states from enacting a mandatory E-Verify law or penalizing employers for hiring undocumented migrants. The U.S. Chamber of Commerce sued Arizona to prevent enforcement of the Legal Arizona Workers Act, legislation signed into law in 2007. The law allows Arizona to revoke the licenses of employers that knowingly employ undocumented migrants and mandates the use of E-Verify, an internet database used to verify the employment eligibility of potential workers.

The Chamber of Commerce argued that federal law preempts the Legal Arizona Workers Act, which prohibits states from imposing civil or criminal penalties, except through licensing laws, on employers who hire undocumented migrants. The Supreme Court held that this law was not preempted by federal law, noting that Arizona’s licensing law falls squarely within the licensing exception.

The court also rejected the arguments that Arizona’s mandatory E-Verify requirement is preempted by federal law.  In so holding, the court noted that the law that created E-Verify only prohibits the federal government from requiring the use of E-Verify, but contains no language prohibiting states from requiring the use of the system.

While not endorsing this law, today’s Supreme Court decision unfortunately opens the door for other states to pass similar mandatory E-Verify laws, which could have devastating effects on vulnerable migrant populations and the U.S. economy. Immigrants living in states that pass mandatory E-Verify laws will be forced to move into a cash economy or to uproot their lives and move to a state where an E-Verify mandate does not exist.

If E-Verify were implemented nationwide, the non-partisan federal Congressional Budget Office says that the federal government would lose over $17 billion in tax revenues. Estimates also show that 3.6 million workers would be required to have their records corrected by a government agency or lose their jobs.

A more fair, practical and fiscally responsible solution would be for Congress to pass comprehensive immigration reform that allows undocumented immigrants to register, go through background checks, and pay taxes on their way to becoming full Americans.  According to estimates, comprehensive immigration reform would produce at least $1.5 trillion in cumulative U.S. gross domestic product over 10 years.

Finally, it is worth noting that both the majority and the dissenting opinions recognize that only the federal government can regulate immigration and that federal law preempts state law where Congress expressly or impliedly intends to do so, or where a state law conflicts with federal law.

To read the full Supreme Court decision, click here.

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