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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. REFERENCES [1] Emberson Edward Proper, Colonial Immigration Laws: A Study of the Regulation of Immigration by the English Colonies in America (2003) (hereinafter Colonial Immigration Laws). [2] Colonial Immigration Laws, at 14-15. [3] Colonial Immigration Laws, at 15. [4] Colonial Immigration Laws, at 18. [5] Colonial Immigration Laws, at 19. [6] Colonial Immigration Laws, at 25. [7] Colonial Immigration Laws, at 29. [8] David Weissbrodt et al., Immigration Law and Procedure in a Nutshell, 3-4 (2017) (hereinafter Immigration Law and Procedure). [9] Immigration Law and Procedure, at 3. [10] Immigration Law and Procedure, at 4. [11] Immigration Law and Procedure, at 4. [12] Immigration Law and Procedure, at 4. [13] 92 U.S. 259 (1875). [14] Id. at 262. [15] Id. at 274. [16] See generally Mark Peterson, The City-State of Boston: The Rise and Fall of an Atlantic Power, 569 (2019). [17] See J.W. Helbich, Germans in the Civil War: The Letters They Wrote Home, 1 (2006). [18] See generally Terrence Golway, Machine Made: Irish America, Tammany Hall, and the Creation of Modern New York Politics, 61 (2012). [19] See generally Jonathan H. Earle, Jacksonian Antislavery and the Politics of Free Soil, 1824-1854, 116 (2004). [20] Immigration Law and Procedure, at 6. [21] Immigration Law and Procedure, at 6. [22] Immigration Law and Procedure, at 6. [23] Immigration Law and Procedure, at 8. [24] Immigration Law and Procedure, at 8. [25] Immigration Law and Procedure, at 8. [26] Immigration Law and Procedure, at 9. [27] Immigration Law and Procedure, at 10-11. [28] Immigration Law and Procedure, at 11. [29] Immigration Law and Procedure, at 13-14. [30] 8 U.S.C. § 1101. [31] Immigration Law and Procedure, at 15. [32] Immigration Law and Procedure, at 16. [33] Immigration Law and Procedure, at 17. [34] Chamber of Commerce v. Whiting, 563 U.S. 582, 588 (2011). (citing 1971 1974 Cal. Stats. ch. 1442, § 1(a)). [35] DeCanas v. Bica, 424 U.S. 351, 353 (1976). [36] Id. [37] Id. at 354. [38] Id. [39] Id. at 355 (internal citations omitted). [40] Id. at 355-56. [41] Id. [42] Id. at 356. [43] Id. at 360-61. [44] Immigration Law and Procedure, at 18 [45] Immigration Law and Procedure, at 18. [46] Immigration Law and Procedure, at 19. [47] Immigration Law and Procedure, at 21. [48] Robert H. Gibbs, It Ain’t Over ‘Til It’s Over: Amnesty Issues Persist a Decade After IRCA , 73 No. 41 Interpreter Releases 1493 (1996). [49] Pub. L. No. 104-208, 110 Stat. 3009 (1996). [50] Liao, at 418 (citing Pilot Programs for Employment Eligibility Confirmation, 62 Fed. Reg. 48,309, 48,311 (Sept. 15, 1997). [51] Liao, at 418 (citing Expansion of the Basic Pilot Program to All 50 States and the District of Columbia; Providing Web-Based Access, 69 Fed. Reg. 75,997, 75,998 (Dec. 20, 2004)). [52] Elsbernd, at 105. [53] Elsbernd, at 105. [54] Samson R. Elsbernd, The Future of Work Status Legislation and E-Verify , 11 Engage: J. Federalist Soc'y Prac. Groups 104, 104 (2010) (hereinafter Elsbernd). [55] Elsbernd, at 104. [56] See generally Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain , GAO, (Dec. 17, 2010), https://www.gao.gov/products/gao-11-146 (hereinafter GAO). [57] See GAO. [58] GAO. [59] See GAO. [60] Margaret Hu, Reverse-Commandeering , 46 U.C. Davis L. Rev. 535, 567 (2012). [61] Chronological summary of E-Verify, Department of Homeland Security, (2022), https://www.e-verify.gov/about-e-verify/history-and-milestones. [62] Elsbernd, at 105. [63] Elsbernd, at 105 (citing United States v. Illinois, U.S. Dist. LEXIS 19533 ((C.D. Ill., March 11, 2009)). [64] Chamber of Commerce v. Napolitano, 648 F.Supp.2d 726 (D. Md. Aug. 25, 2009). [65] Id. at 733-35. [66] Lozano v. City of Hazleton, 724 F.3d 297, 300-301 (3d Cir. 2013). [67] Id. at 302. [68] Chamber of Commerce v. Whiting, 563 U.S. 582 (2011). [69] Id. at 591 (citing Ariz.Rev.Stat. Ann. §§ 23–211, 23–212, 23–212.01). [70] Id. [71] Id. at 592. [72] Id. [73] Id. [74] Id. at 593. [75] Id. at 594. [76] Id. [77] Id. at 594-95. [78] Id. at 595. [79] Id. at 597. [80] Id. at 600. [81] Id. at 602. [82] Id. at 609 (internal citations omitted). [83] Id. at 611-12. [84] Id. at 617-18. [85] Gening Liao, The Misuse of E-Verify and Employer Liability for National Origin Discrimination , 28 ABA J. Lab. & Emp. L. 417, 417 (2013) (hereinafter Liao). [86] Arizona v. U.S., 567 U.S. 387, 392 (2012). [87] Id. at 393-94. [88] Puente Arizona v. Arpaio, 821 F.3d 1098, 1101 (9th Cir. 2016). [89] Id. at 1102. [90] Id. [91] Id. [92] Id. [93] Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1239 (11th Cir. 2022). [94] Id. at 1255-56. [95] Id. at 1256. [96] Id. [97] Charles M. Miller et al., Immigration Compliance and Best Practices, 155 (2018) (hereinafter Immigration Compliance). [98] Immigration Compliance, at 155. [99] Immigration Compliance, at 156. [100] Immigration Compliance, at 157. [101] Immigration Compliance, at 158. [102] Immigration Compliance, at 160. [103] Arizona, 567 U.S. at 395-97. [104] Id. at 395. [105] Lozano, 724 F.3d at 310. [106] Id. [107] Juliet P. Stumpf, Getting to Work: Why Nobody Cares About E-Verify (And Why They Should) , 2 UC Irvine L. Rev. 381, 397 (2012) (hereinafter Stumpf). [108] Stumpf, at 397 (internal citations omitted). [109] Liao, at 424-25. [110] Stumpf, at 397. [111] Stumpf, at 397. [112] Liao, at 421. [113] Liao, at 421. [114] Stumpf, at 397. [115] Stumpf, at 397. [116] Stumpf, at 398. [117] Stumpf, at 398 (citing Judith Gans, Udall Ctr. for Stud. in Pub. Pol'y, Arizona's Economy and the Legal Arizona Workers Act 15 (2008)). [118] Whiting, 563 U.S. at 644-45 (citing H.R.Rep. No. 108–304, pt. 1, p. 6 (2003)). [119] Estimated Costs and Timeline to Implement Mandatory E-Verify , USCIS, 7 (Jun. 10, 2016), https://www.dhs.gov/sites/default/files/publications/U.S.%20Citizenship%20and%20Immigration%20Services%20-%20Estimated%20Costs%20and%20Timeline%20to%20Implement%20Mandatory%20E-Verify%20-%20FY%202016.pdf (hereinafter USCIS Report). [120] USCIS Report, at 7-8. [121] 549 U.S. 497. [122] 504 U.S. 555. [123] Arizona, 567 U.S. at 397. [124] Id. at 399. [125] Id. at 398. [126] Arizona, 567 U.S. at 394-95. [127] Id. (citing 8 U.S.C. §§ 1182, 1325, 1326, 1301-1306, 1622). [128] Puenta Arizona, 821 F.3d at 1104 (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). [129] Salerno, 481 U.S. at 745. [130] Texas v. U.S., 809 F.3d 134, 147 (5th Cir. 2015). [131] Id. [132] Id. [133] Id. at 148. [134] Id. at 149. [135] Id. at 154-55. [136] Id. at 180. [137] Id. at 183. “The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility. Even with “special deference” to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” [138] Id. at 186. [139] Id. at 188 (internal citations omitted). [140] Id. [141] Texas v. U.S., 579 U.S. 547, 548 (2016). [142] DHS v. Regents of the University of California, 140 S.Ct. 1891, 1901 (2020). [143] Id. at 1905. [144] Id. at 1916. [145] Regents, 140 S.Ct. at 1916. [146] Pub.L. No. 109–13, div. B, 119 Stat. 231. [147] Texas, 809 F.3d at 186.

In the US, a first-past-the-post plurality electoral system means that a state’s Electoral College votes for President go to whichever candidate gets the plurality of votes in that state. Every four years on Election Day, states report in from across the country. The result is the “blue states” and “red states,” states that go to Republicans or Democrats in each presidential election cycle. Democrats have pushed for a national popular vote achieved through a compact among states to honor the national popular vote results although such an initiative remains unconstitutional given the US Constitution’s explicit directive to use the Electoral College to select the President. There is an alternative to a national popular vote that is constitutional and has already been in effect for years in Nebraska and Maine: district voting. Rather than a national popular vote, district voting offers an alternative way to effectuate popular will that could benefit both parties. Democrats widely promote the idea of a national popular vote, calling the Electoral College outdated. Since the 2004 presidential election, Democrats have won the popular vote in each round by a relatively narrow margin of one or two million votes, although the count of electoral votes by states means that Republican Donald Trump won the 2016 election. In the district voting system, electoral votes are assigned based on the “at large” results mirroring a state’s two US Senators and then by the plurality in each Congressional district in the state. As a result, Nebraska has one of its electoral votes that usually goes to Democrats, and Maine usually contributes a single electoral vote—the only one in New England—to the Republican candidate. The problem with the existing Electoral College system is that it makes the nation appear more split along partisan lines between states than it actually is. There are huge numbers of Democrats in Texas and California has some of the highest vote totals for Republicans of any state. District voting would force national party candidates to diversify their campaigning to current “safe” states, which would benefit many currently overlooked states like New Jersey regarded as a safe source of votes for Democrats but likely a low policy priority. In an ideal system, all the states might implement district voting. However, with fierce litigation battles over redistricting, it is unclear if federal and state courts are actually up to the task of managing district voting. Rather than a nationwide roll out, narrowly split states could benefit most from district voting. With its referendum procedures it is possible district voting could be introduced in California. “Purple” states like Georgia, Minnesota, and Virginia are potentially good candidates for district voting because it stands to benefit both parties across elections. If Democrats are remotely serious about a national popular vote, district voting could be the most viable way to introduce such a system. For Democrats, states that are close to teetering toward Republicans like Minnesota, Wisconsin, and New Mexico might be good candidates for district voting, in the same way that formerly “red” states like Georgia might be good candidates for Republican legislators to enact such changes.

Article IV, Section 4 of the US Constitution is known as the Republican Governance Clause, sometimes also called the Guarantee Clause. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” What does this clause mean? It is generally understood to mean that each state must have a republican form of government, thus barring for instance state dictatorships or constitutional monarchies. But what is the actual scope of this part of the Constitution? Curiously, for such an important clause of the Constitution, the Republican Governance Clause only rarely comes up in court cases or law journal articles. The Supreme Court, in Luther v. Borden  in 1848, concluded that the clause is a nonjusticiable political question—the fancy way of saying it is something federal courts cannot decide. At the time, Rhode Island was the only state without a constitution of its own and had a dispute between two competing state governments. Subsequently, in 1912, the Supreme Court in Pacific States Telephone and Telegraph Co. v. Oregon  was asked to strike down state referendums as a violation of the Republican Governance Clause, but refused to do so on the same non-justiciability grounds. In 1946, in Colegrove v. Green , the Court held that state electoral district malapportionment isn’t justiciable either. Historians and judges alike have a unique opportunity to revisit the Republican Governance Clause’s meaning at the time of the Founding. Is the view that it is non-justiciable actually correct? What about situations like Governor Huey Long in 1930s Louisiana who was effectively a state dictator? What level of divergence by state governments is acceptable? One unsettled question is whether the Republican Governance Clause means that states must  have the same governmental structure as the federal government. That might mean no independent redistricting commissions, electors for state governor, and a geographic senate. At the time of the Founding, states had different legislative structures and state constitutions and most had a very limited franchise compared to today. Under this view of the Republican Governance Clause, something like Nebraska’s unicameral legislature might not be allowed. Because the Supreme Court has consistently found the clause non-justiciable, that suggests that Congress and the Executive Branch can craft policy to enforce the Republican Governance Clause. For Congressional Democrats, that seems like an open invitation to pass the John Lewis Voting Rights Act, although as written that would probably unconstitutionally coerce and “commandeer” state governments, as well as violate the Fifteenth Amendment’s guarantees of racial non-discrimination in voting. Conversely, though, a federal statute requiring compliance with national standards of republican governance might be viable. Such a statute could limit mass mail balloting or finally affirm the Fifteenth Amendment’s guarantees of racial non-discrimination. In light of major election contests in 2000, 2016, 2018, 2020, and likely again in 2024, American federal courts and legal scholars are overdue to consider the meaning of the Republican Governance Clause. Image Credit: Hunter Starett, Unsplash

After heated debate, the Democrat-controlled U.S. Senate has passed a sweeping online censorship bill that imperils the future of free speech on the internet.   The Kids Online Safety Act (KOSA) cleared the U.S. Senate on July 30, 2024, over the vocal opposition of conservative Senators Mike Lee (R, UT) and Rand Paul (R, KY). The bill faces an uncertain future in the Republican-controlled U.S. House, where it is sure to face renewed scrutiny over its threat to Americans’ First Amendment rights.   The bill passed the Senate by a disturbing 91-3 margin , with Lee, Paul and Senator Ron Wyden (D, OR) voting against it. Ohio Senator J.D. Vance, a free speech advocate who is currently the Republican vice presidential nominee, was unable to attend  the vote.   If enacted, KOSA would incentivize tech companies to escalate their censorship  of dissenting views, perverting the internet to fit the sensibilities of Washington censors.   KOSA Uses Subjective Language that Coerce Platforms to Censor More KOSA amends existing law to make tech companies liable if the content shared on their platforms causes children “psychological distress” or “anxiety.” It also penalizes platforms that permit “online bullying” of minors. These undefined, nebulous terms are so subjective that tech platforms only hope of complying may be to aggressively amp up their already extensive censorship operations.   KOSA Creates a Government Censorship Board KOSA creates a government censorship board, named the Kids Online Safety Council, to provide “recommendations” for social media companies. Under the bill’s text, the Safety Council’s membership must include “representatives of covered [Big Tech] platforms” and meet DEI-style  quotas.      KOSA Empowers a Top Censor of the Biden-Harris Administration KOSA instructs the surgeon general to work with the Federal Trade Commission to create studies on potential “remedies” to content that could cause psychological distress or anxiety. The current surgeon general, Vivek Murthy, is one of the Biden-Harris administration’s top censorship advocates, arguing in the case Murthy v. Missouri  that he had a right to direct tech companies to censor critics of the government.   KOSA Creates New Cash Flows for the Censorship-Industrial Complex KOSA requires tech companies to contract with third-party reporting agencies to document “systemic risks to harm to minors based on “industry best practices.” This likely means more lucrative contracts for incumbent, for-profit firms in the censorship-industrial complex like Ad Fontes Media , Moonshot  and NewsGuard .   KOSA Strongarms Big Tech into Banning Internet Anonymity KOSA imposes onerous new reporting requirements for tech platforms which can largely be avoided by requiring users to upload their ID or social security number. This information would then be mandated, by law, to be handed over to third-party auditors. Platforms more resistant to this form of censorship, like TruthSocial or Rumble, could face crippling costs to comply with this vague regulation. This could result in the annihilation of anonymous speech from the internet.   KOSA Allows Attorneys General to Use State Courts to Target Online Speech KOSA permits state attorneys general to sue tech firms if they feel an online platform could cause minors “anxiety.” Furthermore, the law allows these attorneys general to entirely bypass the Constitution’s federal court system, and instead have the cases adjudicated by elected state judges. This means a single biased judge in Manhattan, New York or Atlanta, Georgia could end up determining the censorship policy for the entire nation.   KOSA’s Design Makes It Exceedingly Difficult for Victims of Censorship to Get Justice in Court Since KOSA uses vague words to encourage big tech platforms to censor, it makes it exceptionally difficult for victims of censorship to challenge the potentially unconstitutional law in court. This is because by outsourcing the censorship to a third party (in this case, a tech platform), KOSA largely removes censorship victims’ ability to bring suit against the government directly. Instead, people injured by the act would have to bring their suit against Big Tech companies, which might be hesitant to admit they were following the orders of KOSA’s Online Safety Council.    KOSA Outsources Government Authority to a Private Trade Association.   KOSA increases tech platforms’ liability for content that could trigger a “mental health disorder.” Instead of defining this term, KOSA says its meaning must align with “the most current” version of the Diagnostic & Statistical Manual (DSM) of Mental Health Disorders. The DSM is written by the American Psychiatric Association (APA) , which not a government agency, but rather a private trade association which has a long history of far-left activism. The APA lobbies against statutes regulating  so-called “gender affirming care” of small children and instructs practitioners to incorporate critical-race theory  into their treatment.   Paul, who recently released his own bill  to limit government censorship, argued vociferously against KOSA. He warned : “this bill opens the door to nearly limitless content moderation, as people can and will argue that almost any form of content could contribute to some form of mental health disorder.”     While KOSA passed easily in the Senate, which is run by Democrat Chuck Schumer (NY), it faces more opposition in the Republican-controlled House. House Speaker Mike Johnson (R, LA) previously argued, “Big Tech has an overt bias for the Left. Their censorship is an assault on free speech.”  Image Credit: Mike Haupt, Unsplash

In current US Constitutional doctrine, a standard view holds that there are exceptions to the First Amendment. For those that don’t think about Constitutional doctrines daily, the First Amendment is part of the Bill of Rights passed in 1791 soon after the ratification of the US Constitution. It guarantees freedom of speech, petition, assembly, and religion. In current jurisprudence, commonly recognized exceptions include obscenity, bans on child pornography, copyright, trademark, patent, trade secrets, fighting words, and true threats. But what if exceptions is the wrong way to look at it? There are different ways to look at the Constitution. An originalist viewpoint combines a careful look at the text with a purposive look at the Constitution at the time it was written. Originalists often draw on historical sources from around the time of the Founding in an effort to understand what words meant at the time—dubbed the text, history, and tradition analysis. Other judges are legal realists, who may favor deciding cases based on a hunch about the state of the world. Still others believe in common law jurisprudence, making decisions—left, right, or center—without much reference to the Constitution itself. Judges love to reserve power to themselves. Declaring that there are exceptions to the Constitution puts judges “in the driver’s seat” to make ad hoc determinations of law. This commonly comes up in circumstances like the Dormant Commerce Clause—the idea that judges should decide whether or not a state law unlawfully burdens interstate commerce even when Congress has not passed a law in that area. Saying there are exceptions to the First Amendment misses the point. Most of the “exceptions” aren’t really exceptions at all. The same doctrines could be restated to say that simply because speech is involved in illegal conduct, it does not immunize that illegal conduct. It is unlawful to make threats and assault—putting another in fear of imminent bodily harm—is a crime. Likewise, theft is a crime, even if accomplished through false statements constituting fraud. Some exceptions are a bit harder to parse. Obscenity superficially seems like an actual exception to the First Amendment. Since the 1960s, when courts were placing books on trial (turning ideas of standing and who can be named as a defendant on its head), the Supreme Court has restrained obscenity doctrine quite a bit. Social conservatives and “hate speech” banners would love to strengthen something like obscenity. Here, too, obscenity may be closer to the speech vs. conduct distinction than some imagine. Engaging in lewd acts is arguably conduct, not speech. Likewise, it may dovetail with common law doctrines of nuisance—like blasting music at ultra-high decibels, disturbing neighbors. The problem with exceptions is that by declaring there are some exceptions, it implies there may be more. That invites judicial activism. This hunch applies to other areas often seen as “reasonable” restrictions under the First Amendment like lobbying and campaign finance laws. These laws cannot stand, except to the extent they are used to prevent embezzlement and direct quid pro quo corruption. Claiming there are exceptions to the First Amendment is a hazardous way of interpreting an essential Constitutional doctrine rooted in natural law rights, that could be stated much more succinctly.

In law school, American lawyers are often exposed to canons of statutory interpretation. Yawn. Well, no actually. This seemingly arcane area of law is actually incredibly important for some of the biggest Constitutional and statutory decisions coming out of federal and state courts. Canons are ways of interpreting the meaning of a statute that come from general hunches about the way that the English language works, the intentions of legislators, the US Constitution, and past case law. Not all canons apply in all cases, and judges may disagree about which canon to apply in a particular circumstance. Although there is no official list of canons, textbooks and articles have compiled some of the most commonly used canons. Because canons are often guidelines for interpretation that come from outside the Constitution, it is a reasonable question to ask about their validity. The Rule of Lenity might be the strongest canon of all, arguably rooted in the Eighth Amendment’s prohibition on cruel and unusual punishment. Under this reasoning, it is wrong to construe the uncertain meaning of a statute against a criminal defendant, who would be punished without any way to determine the meaning of the law in advance. Federalism canons (several related ones) also have a strong backing in the Constitution, because the Constitution imagines a tripartite federal separation of powers and a big role for the states in elections and as free standing sovereign governments, mentioned in the Tenth Amendment. Noscitur a sociis from Latin, is also called the associated words canon. Closely associated words bear the same meanings. Similarly, ejusdem generis holds that words in a list belong to the same general class of things. Several canons deal with the “whole act” reading a statute or Constitutional provision for its overall meaning, including the meaning conveyed in headings. This often includes avoiding surplusage, reasoning that if a word is included or omitted that is done on purpose. These interpretive canons probably make sense given the ways that people convey meaning in English (or any language). Ironically, even if the Constitution did contain more specific rules on how it is to be read and interpreted, even those rules would probably require something like canons to interpret. Canons, or very similar concepts, are common elsewhere in Global North. Languages like German and French with extensive, highly specific vocabularies may actually be more specific at baseline than English. After all, English is an unusual creole with lots of French vocab and borrowed words atop Germanic grammar, that is always changing and not centrally regulated. As a result, it’s often up to the crowd to determine what words mean. Hang onto your old dictionaries because major dictionary companies now frequently change definitions to serve short run social priorities, essentially “grassroots lobbying” to change the meaning of words from their past meanings. Should judges use legislative history? Superficially, this seems like a good idea. Why not look to the records of a legislature to figure out what legislators wanted a law to mean. This stance of deferring to legislative intent is often described as “judicial minimalism,” a once more common judicial philosophy that faded from prominence with the death of American judges like Supreme Court Justice Byron White and Justice Louis Brandeis. Although legislative history is widely used, it is disfavored in the US, UK, and even in France. The late US Supreme Court Justice Antonin Scalia despised legislative history, seeing it as a way for judges to make partisan political decisions based on their own desires rather than the actual meaning of the law. Scalia cautioned that legislative history is often crafted in advance by lobbyists who give legislators prepared statements to read into the record, stacking the deck for a different meaning for a law than the actual text of the statute. Because France revived the old Roman Justinian Code as the Napoleonic Code of civil law, France is a bellwether for how civil law countries interpret the law. Except in the area of torts, almost everything in French courts is statutory, meaning judges have to do a lot of statutory interpretation. Until the 1830s, the French legislature would often weigh in with interpretive decisions, although that eventually stopped to prevent partisan decisionmaking in the courts. As in the US and UK, legislative history fell out of favor for decades, although it had resurgence in the 1970s after French legislators gutted and replaced large portions of the Napoleonic Code. In France, judges are expected to apply a text as written unless the result would be absurd. If there is uncertainty, judges may look to the will of the legislature, and fall back on the “teleological interpretation method” if there is too little legislative history. Taken together, widely accepted canons that continue to recur in the US courts are probably mostly sensible. However, attorneys, judges, and the general public should always pause to ask if the value of the canons holds true.

The US Constitution emerged in the late 1780s as a document based on natural rights principles honed during the Enlightenment. In its brief text, it commits free-standing inalienable rights to paper. At the time it was written, it appears some inalienable rights were seen as so obvious they did not need to be written down. One example is the right to raise one’s own children. Unfortunately, the US Constitution does not currently contain a clear statement of the right to parent, meaning that a “right to parent” amendment might be one of the most pressing—and easily agreed upon—additions to the Constitution in the future. Since the early 20th century, courts in the US have largely presumed that a right to parent exists even though there is no textual backing for it in the Constitution. Meyer v. Nebraska, a 1923 Supreme Court case held that a state law prohibiting education in a minority language violated the Due Process Clause of the Fourteenth Amendment. In dicta, the case spoke of a parent’s right to parent his or her own children. Pierce v. Society of Sisters two years later invalidated an Oregon law that required all children to attend public school. However, since the Supreme Court’s splintered decision in 2000 in Troxel v. Granville parental rights are in a state of uncertainty. Justice Antonin Scalia dissented in Granville, noting the conflict between his own view of inalienable rights and the Constitution’s plain text: In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming anyone of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people…I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right. Across the political spectrum, some form of strong parental rights are probably an area of general agreement. Parental rights can never be absolute, of course. Parents cannot neglect or abuse their children. But nor should the government be able to take away children from their homes on a whim. Some inalienable rights seem so obvious they are never written down. That is a mistake, leaving open the possibility that the government could take over parenting of children in any circumstance and dispossess parents at any time.

On January 1, 2024, American corporate executives, charity directors, and small business owners woke up to new rules from FinCEN, the federal Financial Crimes Enforcement Network. FinCEN’s new rule requires all but sole proprietors to report the “beneficial owner” of every corporation in the US, implementing the Corporate Transparency Act of 2021. In 1970, American dissident Abbie Hoffman famously published his provocatively titled book Steal This Book. By compiling beneficial ownership information, FinCEN is saying essentially the same thing. The Corporate Transparency Act contains some thoughtful policy elements, but is typical of the kind of dangerous “bipartisan” legislation passed by Congress. Bipartisan often means bought off, with the kind of legislative consensus that is dangerous to the American public. The administrative rule adopted by FinCEN suffers from many of the characteristic problems of other administrative rules: it is unclear exactly how corporations are supposed to indicate who are beneficial owners. Given that the federal government already collects much of this information through information sharing agreements with states or through tax filing, the beneficial ownership database is functionally redundant, little more than a fishing operation to search for information to target businesses later. Worse still, the FinCEN database is to be shared with “state, local, and tribal” law enforcement agencies. The federal government faces major problems safeguarding its own data and smaller law enforcement agencies likely face even worse circumstances. There is a strong possibility that the FinCEN database will be intentionally, or accidentally on-purpose leaked to dox political opponents. If this seems far-fetched consider California’s recent leaks of the names and addresses of 200,000 gun owners in the state, or the fact that California lost the Americans for Prosperity v. Bonta 2021 Supreme Court case, because California was demanding all charities file Schedule B donor data, and then accidentally leaking that information publicly so that online mobs could target conservative organizations. Disfavored publishers, gun companies, body armor companies, and other businesses are among those that will likely need to be most concerned about FinCEN’s rules. Industry organizations and their members likely have standing under current Supreme Court case law to bring as applied or overbreadth challenges to the new FinCEN rules, and will likely achieve standing again when a change in beneficial ownership—whatever that really means—prompts subsequent filings. Image Credit Kevin Ku, Unsplash

The Scientific Revolution, the Industrial Revolution, the Information Age. Historians love to periodize history around changing ideas and technology. If we want to periodize, there are arguably many different “revolutions” and “ages” going on at any one time. For instance, right this very moment could be described as the “cloud computing era,” the “large language model era,” the “electric and hybrid vehicle age,” or any of a number of other descriptors against the backdrop of other time frames like the “post-Cold War world” or “Third Industrial Revolution.” Here at Global North Institute, we’re glad to be a (very small) part of the think tank revolution. Starting in the 1960s and ‘70s, the US and UK pioneered independent research institutes that act as a sort of mid-point between universities and private research and development. Worldwide, think tanks have prospered. Early movers like the Hudson Institute, the Heritage Foundation, Brookings Foundation, or the Cato Institute offer an alternative to universities, newspapers, and governments to develop new research and ideas. Since the 1980s, think tanks have grown more common in most countries, with prominent examples in countries as diverse as Brazil, Germany, Turkey, and Vietnam. The think tank revolution may still be in its early phase. The very high cost of higher education, combined with falling enrollment in many Global North countries means that many universities may face increased financial stress in the decades to come. Think tanks—although subject to their own inefficiencies—might be a more efficient way of conducting many forms of research compared with universities. For raw transmission of information, universities still have an advantage, along with maintaining the high fixed costs of facilities like labs. Nevertheless, the rise of massive open online courses (MOOCs), widespread distance learning, and the long-standing examples of private scientific research means that the future may see an increasingly blurring of distinctions between universities and think tanks. Universities run a significant risk of group think, leading to famous remarks about scientific revolutions depending more on the retirement of professors than new discoveries. To date, little research has considered whether universities or think tanks are more “effective” at promoting intellectual progress. Certainly, think tanks provide vital alternatives to the ideological group think in universities. US think tanks like the Heritage Foundation and Cato Institute offer valuable alternative intellectual environments for academics who might be locked out of the ivory tower on ideological grounds. Unfortunately, heightened ideological rigidity in many fields means that the need for alternative, think tank style organizations is more important than ever. The American Academy of Obstetrics and Gynecology, which claims to speak on behalf of all women in the US aggressively promotes abortion, a decidedly non-neutral stance for a professional organization creating good grounds for an alternative organization. Even fields like urban planning now appear to need alternatives, to raise seasoned debate about demolishing highways and cramming narrow city streets with wide bike lanes. Ultimately, the think tank model might be more efficient for many areas of research. More think tanks and research institutes in the sciences and technology, to supplement existing research institutes might foster the development of new ideas in biology, chemistry, or physics. Perhaps more think tanks should come up with alternative designs for cars, rather than the designs coming out of big auto makers to generate revenue for shareholders. Even fields like literary and language studies might benefit from the think tank model. Programs like the Iowa Writers Program or the Claremont Institute’s Review of Books are arguably a step in the right direction. Rather than resort to the “gen ed rent seeking,” creating unneeded course requirements to stay relevant (as our colleagues at Cato humorously observed in an episode of the Cato Daily Podcast), language experts could form new think tanks to offer remote language courses from anywhere, rather than maintain precarious Portuguese or German departments. So long as existing non-profit laws remain—and ideally become more streamlined—the future looks bright for think tanks. Image Credit Scott Graham, Unsplash

The right to repair: the phrase conjures images of software engineers maintaining decades old mainframes, consumers fixing their gadgets at home, or small mechanics shops keeping cars on the road. [1] Mass manufacturing of vehicles, machines, and consumer goods—and the more recent mass production of electronics and software—has created incredible opportunities for consumers and businesses alike. At the same time, the rise of “throw away” electronics and consumers goods has heightened concerns about non-reparability and planned obsolescence. Enhancements in metal alloys and manufacturing techniques mean that car have the potential to last longer than ever before. In fact, the current cars in the US are already 15 years old on average. Automakers have driven up the cost of repairs, forcing owners to go to dealerships and a select group of authorized repair shops. An average American household disposes of 175 pounds of electronics per year.[2] Discarded electronics in the form of computers, phones, televisions, batteries, game consoles, DVD players, and other appliances contain heavy metals and rare earth elements. Improperly disposed of this material goes to waste in landfills and has the potential to leach into the environment. E-waste is often shipped overseas to Africa, Indonesia, or China for dangerous and polluting resource recovery. Lack of repairability strips individuals and businesses of the full “bundle of sticks” of property rights and leads to massive inefficiencies and waste. With affordable repairs, many owners could probably keep their vehicles on the road for decades or reduce the steep costs of pollution associated with e-waste. Repairability also creates jobs. In America’s low-cost gateway cities and along rural state highways, one can still find businesses offering electronic repairs, re-upholstering for car seats and home furniture, or refurbishing for engines and machinery. But these businesses and the enterprise they support are increasingly rare. Massachusetts became the first—and so far, only--US state to pass a right to repair law in 2012, dubbed an Act Protecting Motor Vehicle Owners and Small Businesses in Repairing Motor Vehicles.[3] Although focused exclusively on auto repair, the law required automakers to sell to repair shops or car owners the same diagnostic and repair information made available to dealerships. For now, Massachusetts is an outlier. Right to repair bills covering areas like electronics, farm equipment, and automobiles have been introduced in 19 states but so far none have passed.[4] Large corporations are quick to lobby against right to repair legislation. In Nebraska, Apple, AT&T, and John Deere all worked to stop a right to repair law.[5] Today, software is in almost every kind of product imaginable. Cars, computers, and phones all depend on software. In 2016, the Copyright Office issued an analysis of potential copyright issues in software-enabled products.[6] Although it acknowledged the potential for problems with contractual and licensing agreements, the Copyright Office concluded that under existing law, there were few problems with tinkering with products and software after-market. Copyright is not the only intellectual property right to consider in the context of right to repair. Patent law is also a consideration. Producers cannot claim patent infringement for repair of devices because any restriction on use comes from contract law after the first sale.[7] There is another less obvious body of law the supports right to repair. Under federal and state antitrust laws, courts may block tying behavior where a company uses its power in one market to monopolize a second “tied product market.”[8] Courts weigh tying under a per se illegality approach or with the Rule of Reason.[9] In the automotive industry, tying suits have come up on many occasions.[10] Tying claims also come up in relation to electronics. For instance, in Collins Inkjet, the Sixth Circuit upheld a preliminary injunction for a manufacturer that demonstrated that its competitor had sufficient market power to sustain a tying arrangement.[11] Right to repair legislation at the federal or state level would be a big improvement for American property rights. Emily Brown, writing as a law student at the University of Illinois, observed that right to repair might not be a silver bullet for waste reduction and planned obsolescence: Although the resources for extending product lives would be made available, consumers must take initiative to repair their devices rather than falling prey to old habits of tossing out electronics to make room for a newer model. Right to repair does not mandate repair of used devices, nor does it prevent consumers from discarding usable devices when they are replaced with a newer model. Planned obsolescence of consumer technology may be halted by right to repair, but producers can still use irremovable batteries and prevent older devices from updating to new software--as long as they provide the required repair manuals and parts to consumers and third parties.[12] The right to repair is an essential element of ownership. State and federal right to repair laws are sure to face headway from corporate lobbyists in the years to come, but as concerns about repairability grow, we may see increased legislation to safeguard the rights of owners. References [1] Nicholas A. Mirr, Defending the Right to Repair: An Argument for Federal Legislation Guaranteeing the Right to Repair, 105 Iowa L. Rev. 2393, (2020) (hereinafter Mirr-Right to Repair). [2] Emily G. Brown, Time to Pull the Plug? Empowering Consumers to Make End of Life Decisions for Electronic Devices Through Eco-Labels and Right to Repair, 2020 U. Ill. J.L. Tech. & Pol'y 227, 228 (2020) (Brown-Right to Repair). [3] Mirr-Right to Repair, at 2399 (citing ch. 241, § (2)(a), 2012 Mass. Acts (2012)). [4] Mirr-Right to Repair, at 2402. [5] Mirr-Right to Repair, at 2403-04. [6] Mirr-Right to Repair, at 2400. [7] Brown-Right to Repair, at 245 (citing Surfco Haw. v. Fin Control Sys. Pty. Ltd., 264 F.3d 1062, 1066 (Fed. Cir. 2001). [8] Christopher R. Leslie, The Commerce Requirement in Tying Law, 100 Iowa L. Rev. 2135, 2136 (2015). [9] Id. [10] Sports Racing Services, Inc. v. Sports Car Club of America, 131 F.3d 874 (10th Cir. 1997) (holding distributorship had standing to bring monopolization claim and that the direct purchaser rule did not bar members’ illegal tying claim); Town Sound and Custom Tops, Inc. v. Chrysler Motor Corp., 959 F.2d 468 (3d Cir. 1992); Grappone Inc. v. Subaru of New England, Inc., 858 F.2d 792 (1st Cir. 1988). [11] Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264 (8th Cir. 2015). [12] Brown-Right to Repair, at 246.

Some federal agencies are less famous than others. The Delta Regional Commission, founded in 2000 as a federal-state partnership to improve economic conditions in the impoverished Mississippi Delta region is downright obscure. Despite its lack of fanfare, the DRA receives $30 million in federal funding annually to spend in counties throughout Mississippi, Arkansas, Louisiana, Alabama, Tennessee and southern Illinois. So how exactly is all of that money being spent? Global North Institute contacted DRA’s FOIA officer, in this case a private law firm in Mississippi, in connection with DRA Project IL-54287 SIC-Advanced Virtual Reality Nursing granted $59,337 to Southeastern Illinois College for the purpose of buying virtual reality simulators for nursing students in Harrisburg, Illinois. In principal, targeted economic development funding can be a way of improving economic conditions. Looking at the grant program, though, suggests that because of its very broad mission and relative obscurity DRA funds are at risk of going to waste. The grant stretched out across two years with monthly and quarterly updates, totaling up to 200 pages of administrative reporting. By stretching out purchasing over such a long period of time, students were presumably not able to begin learning promptly. Simultaneously, technology and licenses became increasingly outdated from the tech described in the original proposal. DRA board members, who are drawn from states covered by DRA vote on proposals like the VR grant. One document in the release lists other DRA projects slated for funding around August, 2020. The list includes CNA (certified nursing assistant) training, “Industrial Park Life Station Replacement,” and several water main and road improvement projects. These funding items suggest that DRA lacks a clear mission for its funding and ends up being used as a source of miscellaneous grants in the region. A DRA staff member reviewing the VR grant application wrote “Regional impact: project will impact all five counties within the college district that are part of the DRA.” In the record, DRA staff members disagreed about whether the project would support “retaining” enough jobs within the meaning of DRA criteria. Ultimately, the decision to fund the proposal amounted to a shrug “I agree with Kemp’s assessment of the [lack of a significant enough] Tier 1 impact ranking but project seems to be a good avenue to train workers. It is also a smaller ask,” wrote one DRA staff member.

Unless you live on or near an Indian reservation, chances are you rarely think about the Bureau of Indian Affairs. Housed under the Department of the Interior, it finances infrastructure improvements and public services for members of federally recognized Indian tribes. For decades, Indian reservations have lagged the rest of the US for computer (and phone) network access. In recent years, the BIA has begun working to rectify these problem. A Global North Institute FOIA request to the Bureau of Indian Affairs for contract GS00Q17NSD3009 yielded interesting results about the state of telecom on Indian reservations in the US. BIA responded by providing over 400 pages of documentation related to a contract with Verizon to provide network services for reservations. The total award came over $147 million. A large dataset detailed fiber versus TDM copper internet connections and megabit per second performance rates.  Some Indian schools like Aneth Community School in Montezuma Creek, Utah actually rely on microwave wireless connections. Some schools had no internet connections at the time the dataset was compiled, like Lower Bruie Elementary School in South Dakota, although it was listed as having a 100 Mbps connection on-order. In its dataset, the agency appears to show an output of traffic data coming from different Indian schools over networks it supports. A large spreadsheet titled “EIS traffic model” shows virtual private access data and target speeds originating from each school, although the termination point for the connections is not included in the dataset. Although the contract-related dataset skews very technical, it gives a useful sense of the state of computer network access for Indian schools nationwide. Virtually all network devices and licenses purchased under the contract originated with networking technology giant, Cisco, including routers, edge peering border gateway protocol technology, and very mundane purchases like AC power cables.