In Chamber of Commerce v. Whiting, the United States Supreme Court rejected an attempt to overturn a controversial Arizona law that effectively requires Arizona employers to utilize the federal E-Verify program.
In 2007, Arizona enacted the Legal Workers Act, which authorizes the state to revoke the licenses of businesses that are found to knowingly employ undocumented workers. Employers who participate in the federal E-Verify program receive a presumption that they did not know a worker was undocumented. For practical purposes, this requires Arizona employers to participate in E-Verify to protect their ability to do business in the state. E-Verify is a program where employers input information on newly hired employees into a computer, and the computer then verifies whether the documents provided to prove legal status are authentic. Since 2007, a number of other states have enacted similar laws, many of which have been challenged in the courts.
A lawsuit was filed, led by the U.S. Chamber of Commerce, to overturn the Arizona law primarily on a theory that immigration enforcement is the sole province of the federal government and that federal jurisdiction pre-empted any state action in the area of immigration law. The Court disagreed, holding that federal law pre-empts the direct enforcement of immigration laws by state authorities, but the Arizona law did nothing more than place a condition on licenses needed to operate businesses in Arizona. The Court found that business licensing is an appropriate area of state jurisdiction, and pointed out that the federal immigration statute contained language allowing states to impose sanctions through licensing laws.
The Court also pointed out that the Arizona law provides employers with "safe harbor" if they complete the I-9 and E-Verify process, and pointed out that the "rational path" for employers is to "obey the law" by not knowingly hiring undocumented immigrants.
Generally, federal law prohibits the Department of Homeland Security from requiring employers to participate in E-Verify absent a prior violation of immigration law. But, as the Court pointed out, the State of Arizona is not the Department of Homeland Security.
Of concern is the Court's discussion of the E-Verify program, as the Court generally endorsed the federal government's efforts to increase participation, and dismissed any and all concerns raised by the business groups about the program. The case suggests that the Court agrees with federal authorities that E-Verify is the best way to ensure a legal workforce.
The case is likely to have little short term impact in California. In one of the few instances where the Democratic dominance in the California legislature actually helps business, as it is difficult to foresee a scenario where California will pass a law similar to the Arizona law. However, the case is likely to have a significant impact on the political debate about immigration enforcement and reform.
On June 15, 2011, Rep. Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164) which will make the E-Verify employment verification system mandatory for all employers within 36 months. This follows the May 26, 2011 reintroduction of the Secure America Through Verification and Enforcement (SAVE) Act (H.R. 2000) . If it passes, the bill will require all employers in the United States to use E-Verify following a four-year phase-in period. The Court's endorsement of mandatory E-Verify will give political momentum to these bills.
But E-Verify does not solve the immigration problem. A 2006 raid at Swift Foods Co. led to the arrest of over 1,200 undocumented workers – despite the fact that the Company had long participated in E-Verify. In 2008, 595 undocumented workers were arrested by immigration authorities at Mississippi's Howard Industries – again, despite the fact that the Company was participating in E-Verify. In both cases, identity theft allowed workers to get past E-Verify by enabling them to present documents that were legitimate, but did not belong to the workers presenting them for verification.
Of great concern to the agricultural industry is the refusal to recognize the challenges that face American farmers.. The belief that employers should just "obey the law" ignores the difficulty that agricultural employers, particularly dairymen, have in securing legal workers. The fact is that the only pool of workers available to California dairies is one that has a large percentage of undocumented immigrants. With high quality forged identification documents readily available, it is almost inevitable that farmers will hire some number of undocumented workers. Some believe that low pay is the issue, but even if this is true, dairies do not control the price that they receive for their product. Dairy producers cannot simply raise wages to attract legal workers without putting themselves in the red. Unfortunately, those leading the debate in Congress appear to be unwilling to address the challenges that face America's agricultural employers.
In this environment, farmers must be careful to obey the law. It is not unlawful to hire an undocumented worker, it is unlawful to hire an undocumented worker if the farmer knows or should know that the person lacks legal status. Properly completed I-9 forms provide employers with a defense to charges of immigration violations. If the employer diligently and correctly completes the I-9 process, that it has a defense that it did not know that the worker was undocumented. The Obama administration has made worksite audits and enforcement a priority, and agriculture is a targeted industry. It remains critical to carefully complete the I-9 process for every new hire to ensure legal compliance and to protect the dairy from both civil and criminal liability.
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