Updates on State E-Verify Mandates

On September 15, 2008, the Rhode Island Superior Court denied the ACLU’s request for a temporary retraining order which would have prevented the State’s Department of Administration (“DOA”) from enforcing an Executive Order requiring state contractors to participate in the federal employment verification system known as E-Verify. Other similar attempts to prevent states, such as Arizona, from enforcing E-Verify requirements on employers have also failed. See below. The Rhode Island Court, relying on limited information, came to the preliminary conclusions that Governor Carceiri’s Executive Order did not violate the Separation of Powers Doctrine, or the Contract Clause of the Rhode Island Constitution. Furthermore, the Court found that “at this juncture” it did not believe Governor Carcieri “acted outside the scope of his executive authority.” The Court went on to state that the Governor has full authority, through members of his cabinet such as the Chief Purchasing Officer, to design a procurement system that will “increase public confidence in the procurement procedures” and “provide safeguards for a system of integrity.” However, the Court also held that it is more likely than not that the DOA “illegally circumvented” the Federal Administrative Procedure Act (APA) by failing to promulgate an E-Verify rule that would have been subject to notice and public comment procedures. In light of this failure, while denying the temporary restraining order, the Court Order mandated the DOA to promulgate an E-Verify rule pursuant to the process outlined in the APA. Once the final rule is in force, contractors will be required to adhere to the E-Verify certification process. It should be noted that the Court’s decision is only preliminary, based on limited information, and only meant to address the request for the temporary restraining order. The merits of the challenge to the Executive Order have not been addressed.

In other State E-Verify news, as predicted by many, on September 17, 2008, the U.S. Ninth Circuit Court of Appeals (the Court) affirmed the U.S. District Court ruling upholding the Legal Arizona Workers Act (LAWA). LAWA took effect on January 1, 2008, and empowers the State of Arizona to suspend or revoke employers’ business licenses if they are found to have knowingly or intentionally employed aliens who are not authorized to work in the U.S. LAWA also mandates that all Arizona employers use the E-Verify system to verify employment eligibility of newly hired employees as of January 1, 2008. In essence, the Court determined that the Act is a licensing law does not regulate immigration or employment eligibility and therefore does not preempt federal law or policy. The Court stated, “LAWA does not attempt to define who is eligible or ineligible to work under our immigration laws. It is premised on enforcement of federal standards as embodied in
federal immigration law. The district court therefore correctly held that LAWA is a ‘licensing’ measure that falls within the savings clause of IRCA’s preemption provision.” Through this decision the Court afforded
Arizona state courts the authority to suspend or revoke business licenses and in doing so provided the state with an enforcement mechanism not used previously. This is a relatively unprecedented grant of authority for immigration enforcement and should be taken seriously by all businesses. Only time will tell if other States will follow Arizona’s lead and attempt to expand their immigration enforcement authority through licensing provisions.

Many questions regarding the legality of state E-Verify requirements may be addressed during next year’s
congressional debates relating to the extension of the E-Verify program. After an interim extension, E-Verify is
currently slated to expire in March 2009. This means that a new reauthorization battle will be fought again with a new President in the White House. Both Presidential camps have acknowledged the E-Verifying issue as a cornerstone of immigration debate.

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