A Win for Arizona, and the Rule of Law

National Review Online
Saturday, May 28, 2011

The Supreme Court on Thursday upheld Arizona’s 2007 law requiring all employers in the state to use the federal E-Verify system for screening out illegal aliens and revoking the business licenses of firms that knowingly hire them.

The court split 5–3 along party lines: Breyer, Ginsburg, and Sotomayor (Kagan recused herself) ignored the plain meaning of the federal law empowering states to use their licensing power to address the employment of illegal workers. Chief Justice Roberts, on the other hand, found “no basis in law, fact, or logic” for the argument that Arizona should be stopped from doing so in the name of federal “preemption” of state activity.

It’s an important win for many reasons, not least of them the fact that Arizona’s E-Verify mandate actually works. While the illegal-alien population nationwide fell 7 percent from 2008 to 2009, according to the Department of Homeland Security, the number of illegal aliens in Arizona fell by nearly 18 percent, and many analysts credit the E-Verify mandate with that success.

The Court’s decision was a resounding loss for the U.S. Chamber of Commerce–Obama administration effort to prevent states from buttressing federal immigration law. While it doesn’t necessarily follow that the Court will also uphold the suspended portions of last year’s SB1070 — which makes it a state crime to be an illegal immigrant in Arizona and imposes stiff penalties on those who employ and enable illegals — the ruling is a green light for other states to pass their own E-Verify laws. A dozen have already enacted mandates of varying breadth, most recently Georgia and Indiana.

The Chamber of Commerce will complain, but a loss for business lobbyists is not a loss for business. In helping to weaken the employment magnet that draws illegal immigrants to the United States in the first place, E-Verify is an essential tool for immigration control, and it’s likely to become a national standard. The only questions are whether that will happen sooner or later, and whether the process will be smooth or rough. Responsible, law-abiding businesses now have an incentive to work in Congress for a single, national E-Verify mandate, one that would apply in all states and create the stability and predictability that business needs most from government.

Thursday’s decision weakens the hand of the bitter-enders in the Chamber of Commerce, but it has not vanquished them: They are prepared to fight a state-by-state, scorched-earth battle against E-Verify. Such a battle might succeed in delaying implementation of the system in some parts of the country, at the price of heightened uncertainty for employers wanting to hire. Such instability is inherently bad for business.

House Judiciary Committee chairman Lamar Smith (R., Texas) will be introducing an E-Verify bill soon, and Speaker Boehner would be well-advised to put it on a fast track. Passage will not be easy; the reason the Chamber of Commerce and the Obama administration made defeat of the Arizona E-Verify law in court such a high priority is that each wants to trade mandatory E-Verify for something else. The White House sees E-Verify as a bargaining chip for amnesty, while the Chamber wants to hold it hostage to huge increases in “temporary” worker programs. If Thursday’s ruling creates momentum for a national E-Verify standard as a standalone measure, it knocks one of the legs out from under a “comprehensive reform” amnesty deal.