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The Ninth Circuit U.S. Court of Appeals this week upheld an Arizona law that requires businesses to use E-Verify to check worker eligibility and revokes the business licenses of those who knowingly hire illegal aliens. This is a huge victory for immigration reduction advocates because it confirms that state and local governments may assist in the enforcement of Federal immigration law as long as state/local actions are not expressly preempted by Federal law and do not impede or undermine Federal enforcement.

The court rejected a challenge by business and other open-borders groups that contended the Arizona state law was expressly and impliedly preempted by the Federal Immigration Reform and Control Act of 1986 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Plaintiffs also alleged the state law violated employers’ rights to due process by denying them an opportunity to challenge the Federal determination of work-authorization status of their employees before sanctions are imposed. The three-judge panel denied these arguments in upholding the ruling of a Federal district court.

The panel noted that Federal law preempts state regulation “other than through licensing and similar law.” As such, the Arizona law is permissable because it provides for enforcement in a manner that is not expressly preempted - the business licensure process. The court went on to rule Arizona’s law was not impliedly preempted because its requirement for employers to use E-Verify did not conflict with Federal law, which established E-Verify as a voluntary program but did not expressly forbid states from making its use mandatory. Finally, the court denied the plaintiffs’ due process claim, ruling that the state law provides employers a meaningful opportunity to be heard on the question of work authorization before sanctions are imposed.

The Ninth Circuit ruling left the door open for other challenges based on enforcement of the state law, which has not occurred since it took effect in January, 2008.

Arizona state Rep. Russell Pearce, the law’s author, said he is pleased the law has withstood challenges, and believes the ruling will help spur state and local governments to take up similar measures. The Arizona Republic reports that Rep. Pearce is already in discussions with two states interested in following Arizona's lead.

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