Preempting State E-verify Regulations: a Case Study of Arizona's Improper Legislation in the Field of "immigration-related Employment Practices"

• Publication year: 2021

PREEMPTING STATE E-VERIFY REGULATIONS: A CASE STUDY OF ARIZONA'S IMPROPER LEGISLATION IN THE FIELD OF "IMMIGRATION-RELATED EMPLOYMENT PRACTICES"

Rachel Feller

Abstract: In 1996, Congress established E-Verify, a program that allows employers to confirm the employment eligibility of new hires by using a federal electronic database. Although the federal government makes the program voluntary for employers, some states and municipalities have enacted legislation requiring the program's use to prevent the employment of undocumented workers. Some of these state laws have been challenged in federal court on the grounds that they are preempted by federal law, particularly the Immigration Reform and Control Act of 1986 (IRCA). Courts have divided on this issue. This Comment explains the boundaries of preemption in the context of E-Verify legislation by using Arizona's E-Verify law and the Ninth Circuit's decision in Chicanos por la Causa v. Napolitano as a case study. It argues that state E-Verify provisions may sanction employers for knowingly hiring undocumented workers only if the sanction is based on a federal finding that the employer violated IRCA. Specifically, this Comment argues that the Ninth Circuit erred by classifying Arizona's E-Verify statute as an employment law and by allowing Arizona to revoke business licenses based on a state judge's finding that the employer knowingly hired undocumented workers. This Comment argues that courts should recognize that Congress created and occupied a field of federal regulation: immigration-related employment practices.

INTRODUCTION

The United States is home to approximately twelve million undocumented immigrants. (fn1) This population has grown in recent years,(fn2) and states have filled what they perceive as gaps in federal immigration law by regulating employers' ability to hire undocumented workers.(fn3) In 2007 alone, state legislatures passed 240 immigration-related bills- nearly triple the number passed in 2006-many of which addressed employment. (fn4) In their efforts to curb the employment of undocumented immigrants, many states have turned to E-Verify, a federal program that allows employers to check new hires' employment eligibility automatically, using an electronic database.(fn5) Between 2006 and 2008, fourteen states required, encouraged, or limited the use of the E-Verify system,(fn6) and six additional states were considering similar legislation as of May 2009.(fn7) Arizona lies at one end of the spectrum, requiring every private employer to use E-Verify or risk losing its business license. (fn8) Illinois lies at the other end; the state has virtually prohibited employers from using the system until it is more accurate.(fn9) Businesses and immigrant-rights groups have sued to invalidate many of the state laws, arguing in part that federal law preempts state regulation of immigrant employment. The scope of this area of law is changing quickly both in terms of state regulation and court decisions.

In addition to providing an overview of state E-Verify laws and the legal challenges they have faced, this Comment pays particular attention to the Legal Arizona Workers Act. Using the Arizona law as a case study,(fn10) this Comment closely examines Chicanos por la Causa v. Napolitano(fn11) a Ninth Circuit opinion upholding the law against a facial preemption challenge. This Comment argues that the Ninth Circuit's opinion was in error. States may revoke an employer's business license for knowingly employing undocumented workers, but only after a federal finding of wrongdoing. The Ninth Circuit's opinion is to the contrary, and the court erred when it started its preemption analysis by asking whether Arizona's regulation was an employment regulation or an immigration regulation.

Courts need not face the difficult decision of categorizing state regulations as either immigration regulations or employment regulations. As this Comment demonstrates, when Congress passed the Immigration Reform and Control Act (IRCA) in 1986,(fn12) it created a new regulatory field: immigration-related employment practices.(fn13) Part I reviews the federal government's plenary power over immigration, and shows that federal regulatory control has deepened over time. Part II introduces the federal statutes that regulate the employment of undocumented workers and that provide employers with tools to comply with regulations. It pays particular attention to one of those tools: E-Verify. Part III explains the doctrine of federal preemption, which invalidates state and local laws. Part IV discusses why states have chosen to regulate the hiring of undocumented workers and provides an overview of such state laws, with particular focus on the Legal Arizona Workers Act. Part V examines the Ninth Circuit's decision in Chicanos por la Causa, Inc. v. Napolitano and introduces decisions by federal district courts. Finally, Part VI argues that states may sanction employers for knowingly hiring undocumented workers only after a federal finding of wrongdoing. It argues that Chicanos por la Causa is in error because the Ninth Circuit incorrectly framed the Arizona law as a licensing regulation and did not consider whether Congress had created and occupied a distinct field: immigration-related employment practices.

I. CONGRESS POSSESSES PLENARY POWER OVER IMMIGRATION AND HAS CREATED AN INCREASINGLY COMPREHENSIVE REGULATORY SCHEME

Federal authority over immigration derives from constitutional grants of power over areas like naturalization(fn14) and commerce with foreign nations. (fn15) Relying on these express grants of power, as well as the national government's inherent sovereign power, federal courts have long recognized that the power to regulate immigration and deportation falls squarely within the federal government's powers.(fn16) Congressional power over immigration lay dormant throughout the nation's early years, as the federal government implemented an open-door policy and did not regulate immigration.(fn17)

Federal regulation of immigration began in 1875,(fn18) and the Supreme Court soon after recognized Congress's inherent ability to legislate in this field. (fn19) In 1882, Congress passed the first comprehensive immigration laws that prohibited entry by specific groups of people, including Chinese laborers.(fn20) In the Chinese Exclusion Case,(fn21) the Supreme Court held that the federal government could exclude foreigners as an inherent power of sovereignty.(fn22) The Court described immigration as a matter of national concern, saying that "for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power."(fn23) During the early twentieth century, Congress implemented quota systems that limited the entry of foreigners based upon their countries of origin and adopted other measures to control immigration into the country.(fn24)

In later years, the Supreme Court reaffirmed the federal government's plenary power over immigration and invalidated state laws that undermined congressional purpose. (fn25) For example, in Hines v. Davidowitz,(fn26) the Court struck down a Pennsylvania law requiring aliens to register with the state government,(fn27) reasoning:[T]he regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, "the act of Congress . . . is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it. "(fn28)

The structure of today's immigration law was created in 1952, when Congress passed the Immigration and Nationality Act (INA). (fn29) This comprehensive immigration law retained the national-origin quota system, established new preferences for foreigners with special employment-related skills, and created deportation policy and procedures.(fn30) The law did not, however, address the employment of undocumented workers.

In 1976, the Supreme Court decided that in the absence of federal regulations governing the employment of undocumented immigrants, states were free to regulate in the area. In DeCanas v. Bica,(fn31) California farm workers had filed suit under state law against labor contractors, alleging that they were hiring workers not lawfully admitted to the United States.(fn32) The Supreme Court started its analysis with a strong affirmation of federal supremacy over immigration: "Power to regulate immigration is unquestionably exclusively a federal power."(fn33) The Court faced the question of whether Congress intended to preempt state laws regulating the employment of undocumented workers.(fn34) The Court identified the "central concern of the INA" as "the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country."(fn35) The hiring of undocumented workers, on the other hand, was at best a "peripheral concern" of the federal law.(fn36)

State laws attempting to determine "who should or should not be admitted into the country, and the conditions under which a legal entrant may remain" were regulations of immigration and therefore ran afoul of the Supremacy Clause,(fn37) but laws regulating only the employment of undocumented workers were valid exercises of state power under the Constitution. (fn38) The Court's opinion includes the implicit recognition...