Legal Commentary

E-Verify in trouble in the Supreme Court?

By Stewart Baker

I finally had time to listen to the oral argument in this year?s Supreme Court challenge to an Arizona immigration law.  I?ve noted before ? here and here ? my view that the Solicitor General was badly wrong on policy and professional grounds when he used that case to attack the e-Verify program.

The e-Verify program, which electronically checks to make sure a job applicant?s name matches his social security number, is one of the few interior immigration enforcement measures that works, does so humanely, and has significant bipartisan support.  The current Secretary of DHS, Janet Napolitano, endorsed the computer system when she was governor of Arizona and again as Secretary.  But she couldn?t keep the Justice Department from throwing e-Verify under the bus; in a telling triumph of lawyer over client, DOJ set aside its past litigating positions and declared that Arizona had no authority to mandate the use of e-Verify by Arizona businesses.

I expected a tight vote on the Court.  I still do, but it looks as though e-Verify will do worse than the rest of Arizona?s law, which may squeak through.  That will be played as a symbolic victory for the right, because it allows states some role in enforcing immigration law.  But it likely will be more symbolic than practical, because the part of Arizona?s law that may survive simply says that businesses can lose their state business licenses if they knowingly hire illegal workers.

That sounds tough, but as a practical matter, proving that a business knowingly hired illegal workers is very hard to do, even for ICE; state officials will have a much harder time making such cases, and business litigators will cut them to ribbons in the courts, claiming that they misapplied complex federal immigration law.  Will such a remote threat deter illegal hiring?  Maybe a little, but businesses that knowingly hire illegal workers are already at risk of federal criminal prosecution.  It is a vanishingly small risk in this administration, but the risk of losing a license won?t be much bigger in Arizona if the law is upheld.

Requiring all businesses in Arizona to use E-Verify, in contrast, does have an important practical impact.  Tens of thousands of Arizona employers now check to make sure that job applicants have names that match their social security numbers.  Since fake names and fake social security numbers are the simplest way to beat the current immigration employment system, taking that option off the table makes it harder to get work illegally.  And Arizona has taken that option off the table more thoroughly than most states with a mandate that has  boosted e-Verify usage substantially. Losing the state mandate will really set enforcement back.

So why do I think the Court will split the baby, giving conservatives a symbolic victory but not a practical one?  Because the oral argument featured a classic Kennedy-in-the-middle exchange.  Justice Scalia, Justice Alito, and the Chief Justice all expressed some sympathy for the anti-preemption forces.  Justice Breyer, Justice Ginsburg, and Justice Sotomayor all seem to support preemption (though Justice Sotomayor did so only on very particular grounds).  Justice Kennedy seemed to telegraph his views throughout the argument, and they were split.  He was waveringly sympathetic to the state licensing requirement, but he had no sympathy at all for the state?s e-Verify mandate.  Here?s what he said to the state?s lawyer:

JUSTICE KENNEDY:  But you are taking the mechanism that Congress said will be a pilot program that is optional, and you are making it mandatory.  It seems to me that?s almost a classic example of a State doing something that is inconsistent with the Federal requirement.

OK, in theory, Justices? questions don?t tell you how they?re going to vote.  But that question doesn?t leave much doubt about where Justice Kennedy will come out, at least on e-Verify. To complete the vote count: Justice Thomas didn?t ask any questions, but I think it?s safe to assume he?s closer to the conservatives on this issue than to the liberals. And Justice Kagan is recused.

So it only takes four votes for e-Verify to survive, because the court below upheld the state law. And there seem to be four votes for Arizona without Justice Kennedy.  In theory, Justice Kennedy could have voted against Arizona across the board, leading to affirmance by an evenly divided court.  But if that were going to happen, it should have been announced right after the vote.  I?m guessing that Justice Kennedy did what his questions foreshadowed ? cast the fifth vote in favor of Arizon?s licensing provision while splitting the Court 4?4 on e-Verify.

If I?m right, e-Verify has no future in the courts.  Justice Kagan won?t be recused the next time around, and I am confident she?ll vote to kill any state e-Verify mandate.  Indeed, the lower courts are likely to read the tea leaves and knock the mandate over the head without requiring a second round in Washington.

The good news is that a 4?4 decision should make clear to Congress that only further legislation will preserve the states? authority to mandate e-Verify use.  And one can hope that Secretary Napolitano will have more influence over the administration?s legislative strategy than she had over the Solicitor General.

Full post as published by The Volokh Conspiracy on March 12, 2011 (boomark / email).