Special Session, Court Decision Could Give E-Verify New Life

A decision by the U.S. Supreme Court last week upholding an Arizona law that punishes employers who hire illegal immigrants may give Texas lawmakers some newfound momentum to file immigration-related legislation with the hope that the governor adds the topic to the special session now underway.

Gov. Rick Perry called the special session Monday to finish work on the 2012-13 budget. He added congressional redistricting to the call Tuesday. Some lawmakers anticipate immigration will be added to the agenda soon — and on Tuesday, state Rep. Burt Solomons, R-Carrollton, filed House Bill 9, the “sanctuary cities” legislation that failed to get to the floor of the Senate for debate in the regular session.

In Chamber of Commerce of the United States v. Whiting, the high court ruled 5-3 on May 26 that the federal government’s Immigration Reform and Control Act did not preempt the Legal Arizona Workers Act, a bill the state passed in 2007.

The state law would allow the Arizona government to revoke the business licenses of employers who knowingly hire illegal immigrants, and mandates use of the federal electronic employment verification system called E-Verify to verify employment. The system is managed by the U.S. Citizen and Immigration Services and compares the information that workers submit to an employer on an I-9 — the federal document that collects employment-eligibility information — to records maintained by the Department of Homeland Security and the Social Security Administration. Currently only businesses with federal contracts are required to use the system.

Conservatives said the outcome is a victory for state governments frustrated with what they deem is federal inaction on border security and illegal immigration. Chief Justice John Roberts said the IRCA “expressly preempts some state powers dealing with the employment of unauthorized aliens and expressly preserves others.” What Arizona did, he added, “falls well within the confines of what Congress chose to leave to the states.”

More than a dozen bills relating to the use of E-Verify were filed in Texas during the regular legislative session that ended Monday, but all failed to make it to the Senate or House floor for a debate. State Rep. Byron Cook, R-Corsicana, the chairman of the House State Affairs Committee, said lawmakers from both sides of the aisle had concerns about the accuracy of the program and said he would recommend an interim study to evaluate the effectiveness of the system. This week, he said, there was “no question” the Supreme Court's decision would add more momentum to those discussions.

“There was a desire to get an E-Verify bill out and that’s what we tried to do," he said. "We also tried to be thoughtful about the testimony and all the challenges that are around this issue."

The bill that made the most headway was HB 3252 by state Rep. Warren Chisum, R-Pampa. It failed to make the calendar but was voted out of committee after members agreed it was the most workable proposal. The bill would prohibit employers from hiring unauthorized workers. A person who believes an employer is breaking the law would be able to file a complaint with the Texas Workforce Commission. Employers could avoid sanctions if they received what they believed was proper documentation verifying legal status that turned out to be false or if the employer verified the information through E-Verify.

“We did not take the enforcement side from [Immigration and Customs Enforcement]” in the bill,” Chisum said. “They could continue to work for the employer without fear of being arrested.” He said he plans to re-file the bill if immigration is added to the call this summer.

But some business leaders and immigration attorneys are warning that state governments should not interpret the court’s decision as a blank check to file broader immigration legislation.

“It’s a very narrow decision. It fits in to the exception or the exemption for licensing laws,” said Dan Kowalski, an immigration attorney with the Austin-based Fowler Law Firm and editor of Bender’s Immigration Bulletin. “I am afraid too many state legislators won’t pay too close attention.” Instead, Kowalski said, lawmakers should wait for the court’s decision on Arizona’s SB 1070, the now-famous law passed in 2010 that allows for local enforcement of immigration laws.

Bill Hammond, the executive director of the Texas Association of Business and a former Republican state representative, said the decision could hurt legitimate businesses in Texas.

“Just because the court said it’s okay does not make it a good idea. It’s still a bad idea,” he said. “Historically and traditionally immigration has been a federal issue, as it should be. However, a ruling like that can give impetus to those who would see legislation like that in Texas or elsewhere.”

As with many lawmakers, Hammond and Kowalski have concerns about the accuracy of the E-Verify system. The government has admitted the program is flawed and sometimes erroneously flags people as ineligible. But the government also says the system is vastly improved, and now has an improved accuracy rate (as high as 97 percent in some reports). Still, Kowalski said, the remaining 3 percent who are adversely affected may include thousands of eligible workers.

“If you are eligible for a job but you can’t get a job or keep a job because of a computer glitch, that’s not your fault,” he said.