In a surprising and divided decision, on May 26, 2011 the Supreme Court, Chief Justice Roberts writing the majority opinion, handed Arizona a legal victory in their push to mandate use of the E-Verify program for private employers to verify the employment eligibility of new hires. At issue was the constitutionality of Arizona’s Legal Arizona Workers Act and whether federal pre-emption would bar the state’s mandate regarding the use of E-Verify for in-state businesses.  

The Court concluded:

  1. Arizona’s licensing law, which suspends or revokes the business license of in-state employers that employ unauthorized aliens, falls within the confines Congress choose to leave to the states and is therefore not expressly pre-empted.
  2. That federal preemption is not a valid argument because Arizona’s procedures implement the sanctions that Congress expressly allowed the states to pursue through licensing laws. In effect, the Court states that regulating in-state businesses through licensing laws, even if in the area of immigration law, is acceptable.
  3. The immigration law establishing the E-Verify program contains no language circumscribing state action and therefore mandating use of E-Verify, as Arizona did, is acceptable.  

See Chamber of Commerce of the United States of America, et al., Petitioners v. Michael B. Whiting, et al., Supreme Court No. 09-115, 563 U.S. ____ (2011) for the full opinion. Employers can expect more states to push their own E-Verify laws, mandating in-state employers to use the program for all new hires.