Previously published by Western United Dairymen, June 16, 2011
In Chamber of Commerce v. Whiting, the United States
Supreme Court rejected on a 5-3 vote 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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