Supreme Court’s Immigration Decision Also Keeps E-Verify in Operation

By Ian Macdonald

Following the Supreme Court’s split decision last month regarding Arizona’s 2010 immigration law known as S.B. 1070, three principles are clear:

  1. The federal government’s role in setting immigration policy supersedes the efforts of all states in this area;
  2. Despite the decision, certain state immigration laws requiring employers to enroll in E-Verify will remain in operation until the federal government says otherwise; and,
  3. The stage is set for a comprehensive reform of existing immigration law by the federal government sometime in 2013 regardless of who is elected as the country’s next president.

Behind the Supreme Court’s decision

While the Court’s decision recognizes that states, including Arizona, are dealing with significant local immigration challenges associated with illegal immigrants, the Court also made clear not only that the federal government has the ultimate power to establish a uniform immigration policy, but also that federal law preempts any state law that infringes on that federal power.

The Court further asserted that the Supremacy Clause allows state laws to be preempted by federal law in areas of policy and enforcement that are reserved for the federal government to regulate.  Accordingly, in striking down Section 3 of the Arizona statute, which under state law criminalized the failure to apply for or carry federally issued alien registration papers, the Court held that “the federal government has occupied the field of alien registration” in a manner that pre-empts state laws in this area.

Arizona had argued that its law was valid because it mirrored federal law. Rejecting such argument on preemption grounds, the Court explained that because the federal government occupies the field of immigration control and enforcement, such power would be diminished if “every state could give itself independent authority to prosecute federal registration violations.”

The Court went further, striking down Section 5 of the Arizona statute, which made it unlawful for an unauthorized alien to solicit, apply for or perform work, asserting that the Supremacy Clause also preempts Arizona and other states from enacting immigration laws that conflict with the “careful framework Congress adopted” for “maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders.”

The Court held that upon review of the Immigration Reform and Control Act of 1986, Congress set criminal penalties aimed specifically at employers — not undocumented workers — and, therefore, Arizona’s statute conflicted directly with the regulatory requirements approved by Congress.

Not a crime to stay in the U.S. illegally

Section 6 of the Arizona statute, which authorized the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States, was also struck down by the Court.

In this regard, the Court noted that it is generally not a crime for an individual to remain in the United States illegally, so a state law that allows an individual to be removed on probability directly conflicts with established federal removal rules and procedures.  This, the Court stated, is not only an area “entrusted to the discretion of the federal government,” but it could also result in the “unnecessary harassment of some aliens.”

The Court upheld Section 2(B) of the Arizona statute, requiring law enforcement officers to determine immigration status during a lawful stop or arrest, holding that state law enforcement officials already have the ability to inquire about the immigration status of an individual and Arizona’s statute simply makes this ability to inquire mandatory.

Because the stop or arrest, unlike Section 6, would not be based on an immigration violation but some other lawful basis, immigration status can be verified by state law enforcement.  The decision expresses concern about the day-to-day application of Section 2(B) and similar state laws stating, “Detaining individuals solely to verify their immigration status would raise constitutional issues.”

It also alludes to the possibility of further consideration of this issue, leaving Arizona and another five states — Alabama, Georgia, Indiana, South Carolina and Utah — which enacted similar legislation in 2011, far from relieved and facing the daunting prospect of attempting to enforce laws on unchartered, yet highly scrutinized territory.

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What this means to employers

Employers are reminded that state laws aimed at combating the employment of illegal workers are still in force in accordance with the Supreme Court’s May 2011 split decision upholding the Arizona statute mandating E-Verify usage on grounds that it was not preempted by federal law. Many states are now moving quickly from the initial implementation phase of these laws to actual enforcement.

For example, Colorado has started sending employers notices requiring verification that they are in compliance with its statute requiring E-Verify enrollment. As a result, employers face the prospect of having their business licenses suspended as well as a $5,000 fine for a first offense and up to $25,000 for a second.

This patchwork of state and federal laws leaves employers, particularly those with operations in several states, frustrated  because of the added layers of bureaucracy and the need to tailor their HR systems to ensure state-level compliance.  Until the federal government or the Court acts, employers must continue to ensure compliance with both federal and state immigration laws.

Mandatory use of E-Verify is still in place

The Supreme Court’s decision on Arizona’s immigration law sets the political picture on immigration as the 2012 presidential election edges closer.

Both candidates propose immigration reform with key distinctions: President Obama stated on June 25, 2012, “What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system —  it’s part of the problem;” whereas on the same day Gov. Romney indicated that he supports the states’ right to craft immigration laws when the federal government fails “to provide any leadership on immigration.”

It is unlikely that there will be any change between now and the end of the year at the federal or state level. The Supreme Court’s decision will likely put a hold on the implementation of any additional state immigration laws.

As comprehensive immigration reform is more likely in 2013, issues such as the mandatory use of E-Verify by all employers across the country on both existing employees and new hires are likely to take the spotlight.

Ian R. Macdonald is co-chair of the Immigration & Global Migration practice at Littler Mendelson P.C., the world’s largest employment and labor law firm representing management. Based in the firm’s Atlanta office, he has extensive experience in immigration and international law, and represents national and international employers in a wide-variety of immigration-related employment and labor issues. Contact him at


2 Comments on “Supreme Court’s Immigration Decision Also Keeps E-Verify in Operation

  1. Despite mandatory E-Verify being in place, 7 million illegals, using false, or stolen, SS numbers, are employed in non-agriculture American jobs, by unscrupulous, so-called American employers.  What’s with that?

  2. It would be great if legislation is passed to require all employers to enroll in E-Verify and, as part of that, be required to run all new and existing employees through the system. This would clean the US workforce of undocumented workers and reduce employer concern about compliance. Feasibly the I-9 process could be also replaced by E-Verify.

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