Federal Court Upholds E-Verify Federal Contractor Rule

Federal Court Upholds E-Verify Federal Contractor Rule
The amnesty lobby suffered a significant setback last week as a federal court upheld a regulation that will require most federal contractors to use E-Verify — the online, electronically operated employment verification system that allows employers to quickly and easily check the work authorization status of their new hires. (The New York Times, August 27, 2009).

The ruling came more than eight months after a coalition of special interest groups — including the U.S. Chamber of Commerce; Associated Builders and Contractors, Inc.; the Society for Human Resource Management; the American Council on International Personnel; and the HR Policy Association - sued to block the rule from taking effect on its original targeted implementation date of January 15, 2009. (See FAIR's Legislative Update, January 5, 2009).

The push to require federal contractors to use E-Verify has had a long history. On June 6, 2008, then-President George W. Bush signed Executive Order (EO) 13,456, which amended EO 12,989 to require federal contractors to use an electronic employment eligibility verification system to verify the work authorization status of their employees. EO 13,456 also required the Secretary of the Department of Homeland Security (DHS) to choose the verification system to be used. (EO 13,456, June 9, 2008). On June 9, 2008, former DHS Secretary Michael Chertoff designated E-Verify as the system to be used by federal contractors under the EO. (DHS Press Release, June 9, 2008). The Final Rule implementing President Bush's EO was issued in mid-November 2008. (Final Rule, November 14, 2008).

On December 23, 2008, a coalition of special interests filed a complaint in the U.S. District Court for the Southern District of Maryland alleging that the Final Rule was unlawful because it violated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The plaintiffs argued that Secretary Chertoff had violated Section 402(a) of IIRIRA, which states that "the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program [of employment eligibility confirmation]." In designating E-Verify as the electronic employment eligibility verification system to be used by federal contractors under President Bush's EO, the plaintiffs alleged that Chertoff had violated this statutory prohibition. The complaint contained several other allegations, including a claim that the Final Rule violated a separate IIRIRA statutory prohibition against re-verifying the work authorization status of existing employees. (Complaint, December 23, 2008).

In last week's decision, Judge Alexander Williams, Jr. rejected the claims made by the coalition of special interest groups. Judge Williams noted that "[t]he decision to be a government contractor is voluntary and…no one has a right to be a government contractor." Williams added that, even though the Final Rule requires federal contractors to enroll in E-Verify, "[p]otential government contractors have the option not to contract with the government," so Secretary Chertoff hadn't actually required anyone or any entity to use E-Verify. Judge Williams also went on to reject the coalition's claims that the E-Verify contractor rule violated an IIRIRA prohibition against re-verifying the work authorization status of existing employees. According to Williams: "Nothing in IIRIRA explicitly prohibits the Executive Branch from using E-Verify for current employees." (Decision, August 25, 2009).

The Obama Administration has indicated that it intends to implement the final rule on September 8, 2009 — after having delayed the regulation on three separate occasions. (See The Washington Post, January 30, 2009 and FAIR's Legislative Updates from April 20, 2009; June 8, 2009 and July 13, 2009).However, the E-Verify program itself is set to expire on September 30, 2009. While many immigration reformers have been insisting that the program be permanently reauthorized, the Administration has avoided adopting such a position. Senator Jeff Sessions (R-AL) successfully attached a related E-Verify amendment to the Fiscal Year 2010 Homeland Security spending bill that would (1) permanently reauthorize E-Verify and (2) require all federal contractors to use E-Verify to check the work authorization status on all of their new hires, plus existing employees who are assigned to affected federal contracts. The fate of the Sessions Amendment is uncertain, however. The Homeland Security spending bill is scheduled to move to a House-Senate conference sometime in September. Since the House version of the bill does not contain the Sessions Amendment, the Conference Report — which would likely become law - may include or drop this language. (See FAIR's Legislative Update, July 13, 2009).