The Time Has Come For Mandatory E-Verify in the United States

The United States is a nation of immigrants. The arrival of new people from abroad has helped to forge the nation’s identity and spur economic growth. Yet controlling the pace of immigration and understanding who is arriving in the U.S. has remained a recurrent theme throughout American history. After a clampdown on unrestricted immigration in the 1920s, the U.S. staunched the flow of immigrants for decades, slowly creating a new regime of mass immigration since the 1960s. The current wave has transformed American society once more, occurring against a fundamentally different backdrop than immigration prior to the 1920s. Today, managing immigration is more important than ever because of the need to gatekeep public services, ensure that citizens and non-citizens alike comply with U.S. criminal and taxation laws, and safeguard the country’s democratic institutions.

Immigration is often treated in binary terms, as a net positive or net negative. Such discussions miss tremendous nuance, even distinctions between legal and illegal immigration. In reality, immigration encompasses complicated pros and cons. Employment is central to immigration. Access to the U.S. market and its job market is a primary reason for many immigrants to come to the U.S., and an economy powered by a growing population is a powerful incentive for government and corporate interests alike to support immigration. In the U.S. legal system, the employment relationship is often where taxation, healthcare, and employment compensation are administered. A robust system exists to ensure workplace safety and protect civil rights in the workplace. Because of these considerations, employment is second only to national borders as a place to manage immigration.

In 1996, during a period of growing concern about illegal immigration, the U.S. Customs and Immigration Service and Social Security Administration introduced three pilot employment verification programs. One of these programs survived, rebranded as E-Verify in 2004. States began to mandate that employers use E-Verify in the late 2000s and in 2011, Arizona prevailed in the U.S. Supreme Court, which held that states are not preempted from requiring employers to use E-Verify. Despite standardization of many laws across states, through the creation of uniform codes by organizations such as the American Law Institute, states still cleave substantially in politically charged areas. This is true for employment-related enforcement of immigration law. State laws mandating E-Verify tend to cleave between mandates in Republican-dominated states and a total avoidance of mandates in Democrat-dominated states.

The Supreme Court correctly decided that in the context of E-Verify, federal law does not preempt states. Nevertheless, a more standardized national system would be preferable for employers and employees alike. Congress should use a statutory clear statement to adopt mandatory E-Verify nationwide. Part I will examine the history of immigration law in the U.S. and the rise of E-verify. Part II will assess the tangled legal history of E-verify since its inception, and Part III, will argue that a federal law preempting states is needed to mandate E-verify nationwide.

I. FROM UNRESTRICTED IMMIGRATION TO E-VERIFY

Immigration laws in the U.S. predate the country’s founding.[1] Naturalization acts in the colonies encouraged new settlement along with indenturement contracts in Pennsylvania and the Southern colonies that brought European laborers to work newly acquired land.[2] Simultaneously and with less legal formality, English colonists brought in enslaved Africans and Native Americans.[3] Emerging shortly after the Wars of Religion in Europe, the colonies were careful to restrict immigration on some ethno-religious grounds. Early charters expressly or implicitly banned Catholics or placed special duties on Catholics.[4] The Quakers of Pennsylvania imposed a tax on foreign arrivals in 1729 to prevent a full demographic shift to German settlement.[5] Ironically, the New England colonies maintained earlier laws in the 1650s to prevent Quaker settlement.[6] In 1700, Massachusetts passed a comprehensive law requiring ship captains to present passenger lists explaining the circumstance of each passenger.[7]

The federal government has enjoyed unique powers in the area of immigration virtually from the time of the Founding.[8] Article I, sec. 8 of the U.S. Constitution introduced the Foreign Commerce Clause, granting Congress power over immigration.[9] Initially, in 1790, the government readily granted U.S. citizenship to new arrivals, but the 1795 Act, renewed in the Naturalization Act of 1802, required a five-year residency before citizenship could be granted.[10] Although precise records do not exist, estimates suggest that over 10 million immigrants arrived in the U.S. between the Founding and 1880.[11] Piecemeal federal legislation mostly attempted to regulate the conditions of passage for passengers traveling overseas. The Alien Friends Act and Alien Enemies Act briefly created presidential powers to expel dangerous aliens, adopted in 1798, that expired two years later.[12]

The Supreme Court addressed federal immigration powers in Henderson v. Mayor of City of New York, decided in 1875.[13] A British steamship sued the New York City mayor because the city charged an expensive bond on immigrants arriving in the port, even though those immigrants were bound for Canada and simply passing through the port.[14] “We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled,” the Court stated.[15]

Concerns about immigration began to mount around the middle of the 19th century, as the arrival of massive numbers of poverty-stricken Europeans began to disrupt the social fabric. Today, textbook discussions of immigration often ignore the chaos engendered by some European arrivals. During the Irish Potato Famine, hundreds of thousands of starving Irish Catholics arrived in Boston, breaking the high trust of homogenous Puritan New England and outstripping the region’s charitable impulses.[16]

Immigration began to appear as a double-edged sword throughout the 19th century. Immigrants fueled economic growth and—in the case of Irish and German regiments in the Civil War—served valiantly in the armed forces.[17] Simultaneously, the sudden arrival of many different ethnic groups helped to fuel clientelism, ethnic gang formation, and the corruption of Tammany Hall.[18] Free Soilers, watching Southern slaveholding oligarchs attempt to open the West to slavery, perceived immigrants as loyal to the Pope or part of a Southern strategy to create something other than a small landholding yeoman republic.[19] Democrats adopted immigrants as a largely urban constituency that aligned with Southern Agrarian interests in the desire to open the West for settlement.

Over five million immigrants arrived in the 1880s alone.[20] In 1875, Congress passed a law excluding convicts, prostitutes, “lunatics,” and “idiots.”[21] The 1882 Act propounded these restrictions and became one of the first dedicated federal immigration laws, suspending Chinese immigration to the U.S., and imposing a head tax on new arrivals.[22] A subsequent law in 1891 created the Bureau of Immigration, which employed over 1200 officers at the time it was renamed the Bureau of Immigration and Naturalization in 1907.[23]

As immigration surged after 1900, following a modest slump in the 1890s, Congress passed more restrictions, attempting to screen out anarchists, beggars, or those with epilepsy.[24] Throughout the first century after independence, most immigrants came from northwest Europe, but after the 1880s, large numbers came from Southern and Eastern Europe.[25] An increasingly wary Congress passed the 1917 Act over President Wilson’s veto, adding a literacy test and an eight-dollar head tax for arrivals.[26]

With a large domestic population and prospering economy, as well as concerns about anarchists and communists, Congress created a quota system for immigrants in 1921 and lowered the quota levels in 1924—imposing a national origins formula today perceived as racially discriminatory.[27] It created the Border Patrol the same year.[28]

Immigration slumped throughout the Great Depression and World War II. Through the bracero program, the federal government increased arrivals from Mexico to help staff U.S. agriculture and manufacturing, beginning a long period to the present day in which discussions about immigration have tended to implicate the southern border with Mexico. After the war, Congress admitted 400,000 people with the Displaced Persons Act of 1948 and 214,000 refugees from Eastern Europe with the 1953 Refugee Relief Act.[29]

The modern American federal immigration law regime came into being in 1952 with the Immigration and Naturalization Act (INA).[30] The INA initially retained a version of the national origins quota from 1920. The understaffed Border Patrol focused primarily on ejecting Mexican immigrants, including some who may have been U.S. citizens.[31]

Immigration climbed to a new high of 3.3 million arrivals throughout the 1960s, spurred in part by a new formula adopted in 1965.[32] Against the backdrop of the civil rights movement, restrictions on Jewish, Eastern European, Southern European, and Asian immigration seemed suspect. However, a quota of 120,000 arrivals per year from the Western Hemisphere remained in place until 1976.[33]

Despite the near total dominance of federal law in the area of immigration, growing concerns about illegal immigration prompted some states to pass laws of their own punishing employers who hired illegal immigrants. For instance, California passed a law in 1971 imposing fines of $200 to $500 per violation on employers that knowingly hired illegal immigrants.[34]

Legally present migrant farmworkers in California filed suit in California Superior Court, alleging that farm labor contractors were knowingly hiring illegal immigrants and choosing not to renew the contract of the migrant farmworkers.[35] The Superior Court dismissed the complaint, holding the law--§ 2805--unconstitutional, a view affirmed by the Court of Appeal, Second Appellate District on appeal.[36] The Court of Appeal concluded that the area of immigration was foreclosed by Congress.[37] After the Supreme Court of California denied review, the U.S. Supreme Court granted certiorari and reversed the Court of Appeal.[38]

Justice Brennan, writing for the majority indicated, “Power to regulate immigration is unquestionably exclusively a federal power. . . But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.”[39] The Court acknowledged that under its earlier jurisprudence in Florida Lime & Avocado Growers v. Paul, some state regulations “harmonious” with federal law may still be invalid under the Supremacy Clause, but added that not all state laws addressing aliens conflict with federal law.[40] “Thus, absent congressional action, [§] 2805 would not be an invalid state incursion on federal power.”[41]

State plenary police powers grant state governments considerable leeway to decide health and safety, wage, and child labor laws.[42] Immediately preceding the case, Congress passed 1974 amendments to the Farm Labor Contractor Registration Act, permitting states to regulate employment of illegal immigrants, although 8 U.S.C. § 1324, a statute creating a felony for harboring illegal immigrants indicated that employment was not a form of “harboring.”[43]

The surge in immigration in the 1960s and 1970s brought profound changes compared to the restrictions of the 1920s to the 1960s. By 1974, there were already millions of illegal immigrants residing in the U.S. The INS apprehended nearly one million deportable individuals by 1977.[44] A mere 2400 Border Patrol agents proved insufficient to guard the southern border.[45]

Congress vacillated between liberalizing and restricting immigration throughout the 1980s and 1990s. It boosted refugee quotas with the 1980 Refugee Act, reduced permanent exclusions and opened up avenues to attend medical school in the U.S. in 1981, and in 1986 passed the Immigration Marriage Fraud Amendments.[46]

The 1986 Immigration Reform and Control Act (IRCA) marked a new watershed. The law: (1) required employers to verify employment status and imposed penalties for hiring illegal immigrants, (2) prohibited discrimination based on national origin and citizenship status, (3) granted legal status to illegal immigrants who arrived before January 1, 1982, and (4) created new residency status for temporary agricultural workers.[47] IRCA also granted an amnesty to individuals illegally present in the U.S. in 1982, although the implementation of the amnesty was ultimately uneven and extended by litigation throughout the 1990s.[48]

By the mid-1990s, amnesty had fallen out of favor and the political winds shifted in favor of greater immigration restriction. In 1996, Congress passed and President Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act.[49] The Act created three pilot programs to assess employment eligibility, including the beginnings of E-Verify.[50] Initially referred to as the Basic Pilot, the new program launched in five states and expanded to all 50 states on December 1, 2004, before undergoing a rebrand as “E-Verify” in 2007.[51]

E-Verify implementation among employers often has its origins in executive orders. President Clinton issued Executive Order 12,989, setting federal policy not to contract with organizations that knowingly hired illegal immigrants.[52] During his second term, President George W. Bush issued Executive Order 13,045 requiring that federal contractors use E-Verify, a point reinforced by a January, 2009 rulemaking.[53]

Congress repeatedly hesitated to make E-Verify a nationwide system and even allowed the program to expire on March 6, 2009, although it continued to fund the program through September 30, 2009.[54] In late 2009, Congress authorized a short-term three-year extension of the program through September, 2012.[55]

As E-Verify went beyond its initial pilot, the program was plagued with technical problems.[56] “Tentative nonconfirmations,” workers flagged as not legally permitted to work in the U.S. fell from eight percent of queries in 2006 to 3.6 percent by 2009.[57] DHS began to publish privacy notifications to employers to warn about privacy abuses, but prospective employees faced difficulty correcting mistakes—with Privacy Act requests taking 104 days on average to resolve.[58] GAO warned of unsustainable costs in the future lifecycle of the program. To mitigate risks, it published recommendations to: (1) develop procedures for employees to correct their information, (2) procedures for standard entry of names to avoid name mismatch problems, and (3) improved training and tutorials.[59]

Between 2006 and 2011, thousand of immigration bills were introduced at the state level and in Puerto Rico, in many cases requiring that employers use E-Verify.[60] With a tentative green light from Congress, states also collaborated with DHS in new ways, as in the case of Mississippi which was the first state to begin sharing driver’s license data with E-Verify in 2011.[61] E-Verify was now poised for a new patchwork implementation across much of the country and a round of legal challenges in federal court.

II. E-VERIFY: NEARLY THREE TANGLED DECADES

With the rising tide of state E-verify laws, pro-immigration groups mounted several challenges to state laws between the late 2000s and the early 2010s. One of the first cases arose out of a federal government lawsuit against Illinois for anti-E-Verify provisions in Section 12(a) of Illinois Public Act 95-138, decided in 2009.[62] A district court concluded that Congress preempted the Illinois law by extending E-Verify eligibility to all 50 states in 2003.[63]

The Chamber of Commerce and other plaintiffs sued to stop the implementation of E-Verify for federal contractors.[64] After some delay related to the rulemaking process, the district court concluded that neither the Secretary of Homeland Security’s designation, the executive order, or the final implementation rule violated the Immigration Reform and Immigrant Responsibility Act.[65]

Throughout the late 2000s, many municipalities also moved to require enhanced third-party immigration verification, prompting challenges from business and pro-immigrant groups. The Lozano case, decided by the Third Circuit in 2013, stemmed from a preemption challenge against an ordinance in the City of Hazleton, Pennsylvania, prohibiting the hiring and housing of illegal immigrants.[66] The District Court for the Middle District of Pennsylvania permanently enjoined the local law, which the Third Circuit affirmed on conflict preemption grounds.[67] The case returned to the Third Circuit on a second round of appeals after the Supreme Court decided Whiting and Arizona.

States favoring E-verify secured an important victory in the 2011 Chamber of Commerce v. Whiting Supreme Court decision.[68] Arizona, in 2007, passed the Legal Arizona Workers Act of 2007, allowing state courts to revoke business licenses from an employer that knowingly or intentionally employs an illegal immigrant.[69] Under the state law, an individual could complain to the Arizona Attorney General or a county attorney to seek verification of an employee’s work authorization by the federal government.[70] The law prohibited state and local officials from trying to verify an employee’s work authorization independently.[71] If an employee was found to lack authorization, the law tasked state and local officials to report the employee to ICE and local law enforcement, as well as bring a legal action against the employer.[72] By demonstrating compliance with the I-9 system, employers could make out an affirmative defense.[73]

The U.S. Chamber of Commerce and several other organizations filed a pre-enforcement action.[74] The District Court held for Arizona state and local defendants that state mandated E-Verify was not impliedly preempted by the IRCA’s preemption clause, even though Congress had chosen not to make E-Verify mandatory nationwide.[75] The court of appeals affirmed.[76]

The Supreme Court found that IRCA expressly preempts states from imposing civil or criminal penalties for employers who hired illegal immigrants, but did not impose limitations on licensing laws.[77] Arizona’s law included a definition of “license” that closely tracked the federal definition of a license contained in the Administrative Procedures Act.[78] The Court rejected the Chamber of Commerce’s contention that an amendment to the Migrant and Seasonal Agricultural Worker Protection Act limited state licensing sanctions only to situations after an IRCA adjudication.[79]

The Court concluded, “IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others. We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”[80] It found Arizona “went the extra mile,” to ensure that the law’s definitions carefully matched federal definitions, including IRCA’s definition of “unauthorized alien.” Further ameliorating any potential conflict between federal and state law, Arizona’s law required local investigators to rely on federal work-authorization verification.[81] The Court observed:

“[T]he Federal Government has consistently expanded and encouraged the use of E–Verify. When E–Verify was created in 1996, it was meant to last just four years and it was made available in only six States. Congress since has acted to extend the E–Verify program's existence on four separate occasions, the most recent of which ensures the program's vitality through 2012. And in 2003, Congress directed the Secretary of Homeland Security to make E–Verify available in all 50 States. The Department of Homeland Security has even used ‘billboard and radio advertisements ... to encourage greater participation’ in the E–Verify program.”[82]

Justice Breyer crafted a dissent, joined by Justice Ginsberg, arguing that the IRCA preempted the Arizona law.[83] The two justices cautioned about evidence of discriminatory usage of I-9s against perceived foreigners, the risk of erroneous prosecutions, and serious penalties for businesses deemed to violate the Arizona law.[84]

E-Verify adoption grew steadily in the early 2010s, along with legal commentary on the E-Verify system in law reviews. By November, 2012, 409,000 employers had enrolled in E-Verify, at a rate of 1300 per week.[85]

In June, 2012, the Supreme Court issued its opinion in Arizona v. U.S.[86] Earlier, in 2010, Arizona passed the Support Our Law Enforcement and Safe Neighborhoods Act, sometimes referred to as S.B. 1070, creating a state misdemeanor charge for failing to comply with federal alien-registration requirements and a separate misdemeanor for working or attempting to work as an illegal alien in the state.[87]

Puente Arizona, an immigrant advocacy group, and a group of taxpayer plaintiffs from Maricopa County, Arizona launched a challenge against an Arizona identity theft law prohibiting the use of a false identity to gain employment.[88] The district court imposed a preliminary injunction on the grounds that the law was preempted by federal immigration law.[89] On appeal, the Ninth Circuit reversed and vacated the preliminary injunction.[90] The Ninth Circuit found that throughout the late 2000s, Arizona struggled with both illegal immigration and one of the highest rates of identity theft in the U.S., supporting its policy decision.[91] The Arizona statute was not facially preempted.[92]

Contra the holding in cases like Whiting, the Eleventh Circuit in 2022 heard an appeal from Club Madonna, a fully nude strip club in Miami Beach, Florida, challenging a city ordinance requiring verification that dancers are over 18 years old and a U.S. citizen or legal resident.[93] “That Congress decided to permit state and local governments to enact licensing and similar laws does not mean it intended to allow those governments to enact laws that conflict with Congress's decision to exempt casual hires or independent contractors from the employment verification process.”[94] The court of appeals distinguished the Club Madonna case from Arizona’s prohibition on using a false identity to gain employment in Puente Arizona.[95] “Here, the Ordinance fails the relevant constitutional test because, by requiring certain businesses to verify the employment eligibility of independent contractors and casual hires, it obstructs federal law. This provision of the law is facially invalid.”[96]

Although courts have gone back and forth on the specific applicability of state statutes, overall the Supreme Court has consistently affirmed that states may institute E-verify requirements. Because of the federal government’s unquestioned leading role in immigration, few barriers exist to implementing a national statutory mandate.

B. How E-Verify Works in the 2020s

E-Verify is an internet-based verification system, administered by the U.S. Citizenship and Immigration Service and the Social Security Administration.[97] Currently, only federal contractors subject to the Federal Acquisition Regulation are federally required to enroll in E-Verify.[98] USCIS launched a new E-Verify experience in April, 2018, intended to speed up verification.[99]

E-Verify is closely related to the I-9 form. Within three days of the start of employment, employers complete I-9 verification, querying against the Social Security Numident database.[100] The database returns an automated response confirming citizenship, social security number, and date of birth, if these pieces of data are correct.[101] As of 2018, employers accept a Memorandum of Understanding through the USCIS website and one of four different access methods.[102] Employers are required to notify employers about the use of E-Verify before it is used for employment verification.

III. THE CASE FOR MANDATORY E-VERIFY

A. Why Mandate E-Verify

E-Verify attracted considerable attention during the wave of state E-Verify mandates and court challenges in the late 2000s. Yet E-Verify has attracted little attention since that time. Compared with fights over DACA and President Trump’s border wall, E-Verify has faded into the background. Despite this decline in attention, the time has come for mandatory E-Verify nationwide, articulated in a statutory clear statement by Congress.

E-Verify would allow the federal government to verify that only those with work authorization are actually working in the U.S. This ensures that workers receive appropriate protections in the workplace, employers pay required taxes, obey requisite civil rights laws, and do not undercut the market by cheating on wages. For immigrants, E-Verify would be beneficial. If there are problems with work authorization, it would be preferable to know immediately rather than end up in painful and protracted situations in the future, like those experienced by DACA recipients.

In its 2012 Arizona v. U.S. decision, the Supreme Court articulated the scope of federal power in the immigration.[103] Although Justice Kennedy’s opinion for the majority was intended as a statement of law, rather than a statement of policy, his words outline some of the reasons why federally mandated E-Verify is needed. “Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. . . It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”[104]

Mandatory E-Verify would not impose greater burdens than the existing employment verification system. Many commentators on immigration forget that Congress has long required I-9 verification—a cumbersome paper-based process compared with an electronic system like E-Verify. In the Lozano case, the Third Circuit found the City of Hazleton’s immigration-related laws preempted because the city did not provide the same type of safe harbor as the federal government in its I-9 program.[105] “By making the I–9 system a uniform national requirement, Congress limited the compliance burden on interstate corporations while facilitating uniform enforcement. A uniform system reduces costs for employers with multiple locations throughout the country by ensuring that the same human resources procedures can be used in all locations.”[106] A national E-Verify mandate would streamline compliance and allow Congress to create safe harbors, easing any burden on commerce imposed by a checkerboard of state and local laws.

No system is flawless. Like any federally administered information system, there are inherent challenges with document verification and compliance.[107] Between April and June, 2008, the E-Verify system confirmed work-authorization for 54 percent of workers who were not authorized to work.[108] Slight misspellings or modest differences between information input from an I-9 form and the Social Security database can result in false negatives or false positives.[109]

E-Verify commentators have recommended several possible ways to strengthen work-authorization verification. The leading proposal involves biometric data such as retinal scans, fingerprints, or DNA.[110] An alternative proposal called for locking the Social Security of work-authorized individuals in the E-Verify system to prevent subsequent misuse.[111]

Despite the best efforts of the federal government, a national biometric database is still out of scope. The Fourth Amendment’s protections militate against the creation of a biometric-based E-Verify system, except perhaps for non-citizens. If Congress chose to use a biometric system, biometric data collection should only apply to non-citizens. Upon receipt of citizenship and the privileges and immunities that come with it, newly minted American citizens should have the ability to have their biometric data deleted from federal servers. As an alternative to biometrics, DHS and SSA could experiment with something like the barcode system used for REAL ID driver’s licenses or U.S. passports.

If Congress adopts E-Verify nationwide, it must do so with clear benchmarks for performance and effectiveness. The reliability of national E-Verify will play an important role in marketing the program to employers and employees alike. Congress should ensure a standardized process for appeal and review for individuals wrongly blacklisted by the system. This could borrow recommendations from the 2010 GAO report as well as different elements and include: (1) an employee data correction portal, (2) a guaranteed response time to false positive complaints, (3) rules for standardized input of names from Social Security cards, green cards, visas, and passports, and (4) possible civil and criminal penalties for misuse of employment data in E-Verify. Congress should require SSA and DHS to achieve less than one percent false positives for tentative nonconfirmations before the system becomes mandatory.

Opponents of E-Verify have challenged that it promotes employment discrimination. However, the existing E-Verify system contains important safeguards against invidious discrimination. When an employer signs a Memorandum of Understanding with DHS, the employer agrees that E-Verify may only be used to verify new hires and not to screen applicants.[112] Employers are still bound by the requirements of Title VII of the Civil Rights Act of 1964 and antidiscrimination provisions of the Immigration and Naturalization Act.[113] Existing laws are probably sufficient to prevent harmful discrimination. Nonetheless, fears about discrimination could hamper E-Verify cooperation. Therefore, the same proposed employee correction portal could contain an expedited complaint system directing complaints to a DHS ombuds office or perhaps a division of the Equal Employment Opportunity Commission.

At times, E-Verify has fallen short of I-9 as a safe harbor for employers. Therefore, Congress could affirmatively create safe harbors for the use of E-Verify under a national mandate. E-Verify compliance rests largely with employers, with ICE usually too overextended to carry out significant enforcement action.[114] Because of a desire for labor, there is a recurrent risk that employers will simply reuse documentation, refuse to cooperate, or continue to employ non-compliant individuals.[115]

State government, citizen, and employer opposition to E-Verify may be rooted in the idea that E-Verify is part of a discriminatory or repressive immigration system, targeting non-citizens and the “undocumented” for disparate treatment. Limited evidence from survey data suggests that E-Verify may actually reduce some instances of employment discrimination on the basis of race or national origin.[116] A 2009 government supported survey of employers found E-Verify participants were more willing to hire non-citizens.[117]

Cost is a valid concern in the context of E-Verify implementation. Dissenting in Whiting, Justice Sotomayor wrote: “In 2003, when Congress elected to expand E–Verify to all 50 States but declined to require its use, it cited a congressionally mandated report concluding that the annual cost of the pilot program was $6 million, the annual cost of a nationwide voluntary program would be $11 million, and the annual cost of a nationwide mandatory program would be $11.7 billion.”[118] Subsequently, in a 2016 report on mandatory E-Verify, DHS indicated that annual lifecycle cost estimates for E-Verify projected to 2019 totaled between $141 million and $156 million.[119] Cost estimates are driven by a variety of factors including: (1) cost of verifying existing employees and very small businesses, (2) approximately 1.2 percent of cases (in FY 2015) requiring manual verification, (3) office space, information technology, and staffing, and (4) interagency reimbursement to SSA for verifying name mismatches.[120]

Are there ways to offset costs? Costs with E-Verify are low enough that they are probably best paid from Congressional appropriations rather than a different complex funding screens. To conserve costs, Congress could delay implementation for existing employees and very small businesses, prioritize remote work to save on office costs, and prioritize data portability to prevent costly migrations between different servers.

B. The Constitutionality of Mandatory E-Verify

If Congress amended existing federal immigration law to mandate E-Verify nationwide, such a measure would likely result in a Constitutional challenge. Under the reasoning in Massachusetts v. EPA, states would likely have standing to challenge mandatory E-Verify to the extent it harmed state residents, state government contractors, or fell as a financial burden on the state itself as an employer.[121] Similarly, under the reasoning in Lujan v. Defenders of Wildlife, many employers, pro-immigration groups, and trade organizations would likely be able to establish standing by demonstrating a concrete, particularized, and redressable harm.[122] Nonetheless, mandatory E-Verify would likely withstand a Constitutional challenge.

Under the Supremacy Clause, Congress has the unquestioned ability to preempt state law.[123] Preemption takes at least two different forms in Supreme Court jurisprudence. Conflict preemption is inferential, where there is no way to comply with both federal and state law or where a state law poses an obstacle to Congress’s purpose.[124] Express preemption offers a more “air tight” form of preemption, wherein Congress preempts state law through a clear statement, eliminating the need for judicial inference.[125]

“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. . . This authority rests, in part, on the National Government's constitutional power to ‘establish an uniform Rule of Naturalization,’ Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations,”[126] the Court explained in Arizona. Federal law has traditionally imposed criminal sanctions for violation of immigration laws, required registration and documentation, of immigrants, and denied non-citizens many public benefits.[127]

To make out a Constitutional challenge to mandatory E-Verify by statute would be very difficult under existing precedent. Federal courts apply the Salerno test to facial challenges.[128] “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”[129]

If the President chose to implement mandatory E-Verify through an executive order, a challenge would be more likely to succeed. Federal courts have largely permitted sweeping executive action in the area of immigration. In 2012, the Obama Administrative issued an executive memorandum creating the Deferred Action for Childhood Arrivals program (DACA).[130] The DACA Memo laid out five criteria applicants, who arrived in the U.S. illegally as children, would have to meet to enjoy prosecutorial discretion that would permit them to remain in the country.[131] A November, 2014 expanded DACA, making millions more people eligible for the program—approximately 4.3 million of the estimated 11.3 million illegal immigrants in the U.S. at the time.[132]

Formally, DACA did not result in an enforceable right to remain in the U.S., but it did create eligibility to receive federal benefits, such as Social Security payments.[133] Several states, led by Texas, sued to block DAPA’s implementation, arguing that DAPA: (1) violated APA procedure, (2) the Department of Homeland Security lacked the authority to implement DAPA, and (3) DAPA violated abrogated President Obama’s constitutional duties under the Take Care Clause.[134] The states had standing under Massachusetts v. EPA, and at least one—Texas—demonstrated that it would suffer a financial loss providing driver’s license to DAPA recipients.[135]

In Texas v. U.S., the Fifth Circuit performed a lengthy standing analysis and observed that DAPA would eventually allow many illegal aliens to receive a lawful classification based on their children’s changed immigration status, in direct violation of Congressional requirements.[136] “For the authority to implement DAPA, the government relies in part on 8 U.S.C. § 1324a(h)(3),185 a provision that does not mention lawful presence or deferred action, and that is listed as a ‘[m]iscellaneous’ definitional provision expressly limited to § 1324a, a section concerning the ‘Unlawful employment of aliens’—an exceedingly unlikely place to find authorization for DAPA [applying the expression unius canon],” Judge Jerry Edwin Smith wrote.[137] DHS could not rely on Chevron deference, because it was not acting pursuant to a gap left by Congress.[138] ““We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’. . Agency announcements to the contrary are “greet[ed] ... with a measure of skepticism.”[139] Based upon its analysis, the Fifth Circuit upheld an injunction against the DAPA program.[140] An equally divided Supreme Court, in turn, issued a one sentence concurrence with the Fifth Circuit in 2016.[141]

The saga of DACA continued under both the Trump and Biden administrations. Under the Trump administration, the Acting Secretary of the Department of Homeland Security issued a memorandum to terminate the DACA program, which was immediately challenged by a group of affected individuals and third parties.[142] All parties agreed that DHS could rescind DACA. The challenge hinged on whether DHS followed proper process under the APA.[143] The majority concluded that DHS violated proper procedure under the APA and enjoined the rescission of DACA.[144]

By assiduously following the APA, a future administration might prevail in instituting mandatory E-Verify nationwide. The majority in Regents held that DHS violated the APA because it: (1) “failed to consider the conspicuous issues of whether to retain forbearance,” and (2) did not consider “what if anything to do about the hardship to DACA recipients.”[145]

Relying on current statutes, a future administration could lean on the REAL ID Act of 2005.[146] This might provide statutory gap filling that would serve as the basis for Chevron deference.[147] The Executive, acting through DHS, might have a stronger legal case for the creation of mandatory E-Verify than the Obama administration had for its 2014 DAPA expansion.

The near decade long battle over DACA in the courts is a testament to the challenges of imposing national policy through Executive action, even with the benefit of Chevron deference. Gridlock in Congress might necessitate E-Verify implementation through the Executive branch, yet such an implementation might encounter significant legal headway and lose steam between administrations.

CONCLUSION

The time has come for mandatory E-Verify nationwide, articulated in a statutory clear statement by Congress. From the time of its experimental implementation as a pilot program in 1996, E-Verify has emerged as a robust and streamlined way to verify an individual’s authorization to work in the U.S.

Mandatory E-Verify presents myriad benefits, allowing the federal government to verify that only those with work authorization are actually working in the U.S. For immigrants, E-Verify would be beneficial. If there are problems with work authorization, it would be preferable to know immediately rather than give rise to painful and protracted situations, like those experienced by DACA recipients. Service guarantees and an employee portal to correct data errors taken together with existing civil rights laws can ensure compliance with civil rights laws.

No system is flawless. If Congress adopts E-Verify nationwide, it must do so with clear benchmarks for performance and effectiveness. Moreover, it should ensure a standardized process for appeal and review for individuals wrongly blacklisted by the system. To avoid privacy risks, Congress should confer closely with civil society groups to create a version of the E-Verify system that is most Constitutional and least intrusive. This might mean prohibiting biometrics outright or restricting the use of biometrics only to non-citizens, with the option to remove their biometric information from federal servers upon receipt of citizenship. Mandatory E-Verify implemented by statute would pass constitutional muster and offer an enhanced system for work authorization in the U.S.

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