Title: [84WashLRev0289] Preempting State E-Verify Regulations: A Case Study of Arizona's Improper Legislation in the Field of "Immigration-Related Employment Practices"
Abstract: 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.1 This population has grown in recent years,2 and states have filled what they perceive as gaps in federal immigration law by regulating employers' ability to hire undocumented workers.3 In 2007 alone, state legislatures passed 240 immigration-related bills nearly triple the number passed in 2006 - many of which addressed employment.4 In their efforts to curb the employment of undocumented immigrants, many states have turned to ?-Verify, a federal program that allows employers to check new hires' employment eligibility automatically, using an electronic database.5 Between 2006 and 2008, fourteen states required, encouraged, or limited the use of the E- Verify system,6 and six additional states were considering similar legislation as of May 2009.7 Arizona lies at one end of the spectrum, requiring every private employer to use E- Verify or risk losing its business license.8 Illinois lies at the other end; the state has virtually prohibited employers from using the system until it is more accurate.9 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,10 this Comment closely examines Chicanos por la Causa v. Napolitano,11 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 1986,12 it created a new regulatory field: immigration-related employment practices.13 Part I reviews the federal government's plenary power over immigration, and shows that federal regulatory control has deepened over time. …
Publication Year: 2009
Publication Date: 2009-05-01
Language: en
Type: article
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