Sunday, May 29, 2011

Court Order

Chamber of Commerce v. Whiting, No. 09-115

The Left and the Right both came up big losers in a recent 5-3 Supreme Court decision, and on balance, I think the Court got this one correct.

In 2007, Arizona passed the Legal Arizona Workers Act, not to be confused with the controversial 2010 S.B. 1070 law that allowed law enforcement to selectively ask the brown skinned, “Where are your papers?”  The Legal Arizona Workers Act, in summary, stipulated two things.  First, the state could mandate that private employers use the federal E Verify system to confirm the work eligibility status of all employees, and second, the state could impose penalties on private employers who are found to knowingly employ undocumented workers, penalties up to and including the loss of a license to do business within the state.

The Obama administration, immigrant rights groups, and the U.S. Chamber of Commerce (Left, Left and Right) combined forces to challenge the law, but using different rationales.  The administration argued that the law usurps Congress’ sole authority to enforce the nation’s immigration laws.  Immigrant groups argued that mandatory use of E Verify, still considered to be a pilot program by the government, could lead to national origin-based discrimination in hiring.  The U.S. Chamber of Commerce argued that allowing each state to create their own enforcement protocols would mean a web of 50 different rules and regulations, thereby increasing business costs of compliance.

I have some sympathy for the three positions, but that doesn’t change the fact that the law is legally sound and utterly reasonable. 
Congress should be doing its’ job and take up (and pass) comprehensive immigration reform that deals with border security, bureaucracy and process, discrimination, and a path to citizenship.  In the absence of leadership from the feds on this issue, states will continue to take matters into their own hands, and I for one cannot blame them for that.

I work regularly with the E Verify system, and my opinion is based on purely anecdotal experiences.  While the program is still considered to be in the pilot phase, I have found it to be fairly accurate, and much improved over the past few years.  I must caution, however, since there is a myth surrounding E Verify that it definitively provides proof that the person in front of you is the person they say they are.  The truth is that E Verify can confirm that the person they have represented themselves to be is legally eligible to work in the U.S., and nothing more.  Short of biometric information, that’s the best you can do.  E Verify, in my opinion, isn’t the problem, although it could evolve into the solution over time.

The third argument, that allowing the law to stand could encourage other states to add their own law to the national patchwork of immigration regulations, presents a real paradox for conservatives.  On the one hand, uniform regulations across state lines can reduce business costs.  On the other hand, uniform federal regulations take power away from the states.  When states’ rights and burdensome business regulations collide, who wins?  I’d like to hear this debated by the Republican candidates this fall, and watch them get tied up in philosophical knots.

Chief Justice John Roberts wrote the majority opinion, and said that Congress had “preserved the ability of the states to impose their own sanctions” in an effort to control illegal immigration.  The Immigration Reform and Control Act of 1986 placed employers on the front lines of immigration enforcement by tasking businesses with validating a worker’s identity and work eligibility once hired.  Shouldn’t the state then have the power to punish those businesses who duck that obligation?  It is doubtful that Justice Roberts and I will agree on much in the future, but on this occasion, darn it – he’s right.

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