High court ruling may affect state e-verify law

While some state lawmakers push for stricter anti-illegal immigration legislation, Mississippi's 2008 immigration reform law may face an outside challenge.

The U.S. Supreme Court has agreed to take up a case that challenges Arizona's 2007 mandatory E-Verify law.

Legal analysts say the high court's ruling could set a precedent for 14 other states, including Mississippi, that require companies to check the legal status of all new employees through the free online federal system.

"Congress has made it abundantly clear that E-Verify use is intended to be voluntary," Carter Phillips, attorney for the U.S. Chamber of Commerce, said Friday.

The immigration debate has heated up in Mississippi in recent months, with legislative hearings to discuss illegal residents and stricter legislation that will be proposed in the 2011 legislative session.

The Mississippi Legislature passed the Employment Protection Act, also referred to as the E-Verify law, in 2008. It has taken effect in phases, based on company size.
All companies with more than 30 workers have had to use the Internet-based system since July 1 to check the legal status of potential employees. Those with fewer than 30 workers have another year to comply.

"Congress could have, but did not, expressly forbid state laws from requiring E-Verify participation," said Sen. Chris McDaniel, a Republican from Ellisville who co-authored the E-Verify legislation and is a lawyer. "Since federal law has traditionally encouraged federal and state collaboration regarding the enforcement of immigration law, the Supreme Court will find the act to be constitutional."

The 9th U.S. Circuit Appeals Court based in San Francisco upheld the Arizona legislation in 2008, but the Supreme Court recently agreed to take it up on appeal.
"The Legal Arizona Workers Act has already been upheld by federal district and appellate courts, including the very liberal 9th Circuit Court of Appeals," McDaniels said.

The Arizona challenge, led primarily by the Republican-leaning Chamber of Commerce, has drawn support from various business groups and trade associations, the Obama Administration, current and former members of Congress, civil rights groups, immigrant rights groups and at least one labor union.

"The loud and clear message from the bipartisan array of groups supporting the chamber's lawsuit is that immigration reform is a national problem that requires a national solution," Robin Conrad of the U.S. Chamber's public policy law firm said in a statement. "The confusing patchwork of state and local immigration laws stands in the way of meaningful immigration reform."

Phillips said the Homeland Security-run E-Verify system was never intended for mandatory use.

"It's not designed for it. It would overload the system if all states made it mandatory," he said.

Jackson attorney Jim Craig, who has been watching the case, compared state immigration laws to states creating their own treaties with nations or sending members to the United Nations.

"It's foreign policy and only the federal government has the power to deal with these issues," Craig said.

The case, which will be heard Dec. 8, should clarify whether states have the right to mandate the use of such a program.

"Nobody ever knows what direction the Supreme Court will go in," Craig said.
But he found it telling that the court would take up the case.

"The Supreme Court knows what issues are hot-button issues. They may be trying to make it clear," he said.

In addition to questioning whether a state E-Verify law is preempted by a federal law, the Arizona case takes issue with punishments that companies can face for not following it.

In Mississippi, enforcement falls on the Department of Employment Security, Department of Revenue, secretary of state, Department of Human Services and attorney general, according to the state law.

Recent queries made by The Clarion-Ledger showed companies that choose not to follow the E-Verify law likely can get away with it, as some agencies identified as enforcing bodies do not have the capability or finances to do so.

In response, Lt. Gov. Phil Bryant, who pushed the legislation, said in a statement he expects the Senate to take up additional legislation in 2011 to give it more teeth.

"I am determined to root out abuse by those who aren't playing by the rules," he said.

Bryant spokesman Mick Bullock said Friday he was not aware of the case heading to the Supreme Court.

"Lieutenant Governor Bryant believes that our E-Verify law protects the right of Mississippians to make an honest living by ensuring that Mississippi jobs go to people who are legally in our state and not to illegal aliens," Bullock said.

Source - http://www.hattiesburgamerican.com/article/20101011/NEWS01/10110320/-1/rss01