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  by  Roy Beck

NumbersUSA was happy to oppose the U.S. Chamber of Commerce in this case that the Supreme Court will decide over the next few weeks.  

Our amicus brief to the Court is in support of the state of Arizona's law requiring all employers to use E-Verify to keep illegal aliens from holding jobs sought by unemployed Americans.

Nothing is more central to the immigration debate in 2011 than mandatory E-Verify.

And the biggest part of the mandating effort probably will be in the states.   That is why the Chamber of Commerce -- assisted by the Obama Administration and the ACLU -- sued Arizona and succeeded in bringing this case to the Supreme Court in hopes of stopping all state worker verification efforts.  The Chamber and the U.S. Justice Department want to halt all state efforts to put unemployed Americans into jobs currently held by illegal aliens.

Today, I will limit this space to introducing our Supreme Court effort and quote from our amicus the Summary of our arguments to the Court.

I want to thank all of you who responded to our appeal in the autumn for donations to hire an attorney and to pursue this case.  

I will interject a few comments in this style.


In The Supreme Court of the United States
MICHAEL B. WHITING, et al., Respondents.

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit

Brief of NumbersUSA Education & Research Foundation As Amicus Curiae Supporting Respondents and Affirmance
-- J.E. McNeil, Counsel of Record for Amicus Curiae, McNeil & Ricks, PC, Washington, D.C.

The following three questions are the ones that NumbersUSA most wanted to address to the Supreme Court.  We felt that other attorneys in the case might not have dealt with these questions as specifically as we wished.

Keep in mind that the "petitioner" (Chamber of Commerce) contends in part that mandating E-Verify places far more of a burden on businesses than Congress ever intended to happen. 

Questions Presented

1. Whether federal law expressly preempts Arizona’s law authorizing sanctions against licenses of employers that knowingly or intentionally employ unauthorized aliens when 8 U.S.C. § 1324a(h)(2) specifically preserves state sanctions “through licensing and similar laws.”

2. Whether Arizona’s law authorizing licensing sanctions against an employer is impliedly preempted by federal law even though the sanctions are within the savings clause in 8 U.S.C. § 1324a(h)(2) and Arizona’s law is otherwise consistent with IRCA.

3. Whether Arizona’s statute requiring employers within the State to use the federal E-Verify program to confirm that new employees are legally authorized to work in this country is impliedly preempted because Congress has not mandated the use of this federal program nationally.

I will in later blogs provide you our arguments on each of those questions. 

Here is our opening statement to the Court of the underlying philosophy of policy and government related to keeping illegal aliens out of U.S. jobs:


Congress's intent was and is to create a fair immigration policy that includes, in salient part, deterring illegal aliens by ending the lure of employment.   While Congress has clearly preempted some parts of the enforcement of this immigration policy, it expressly and by implication left some to the states and individuals.

Although the Chamber of Commerce is concerned about the "burden" on business caused by this policy, it seems ironic that small businesses (which have never been reticent at explaining a burden of their own) have come out overwhelmingly in favor of enforcement of immigration law in the workplace.[1] 

The source is:  [1] Zogby Poll, Business-Union Poll (Feb 2010),

Perhaps, they, unlike some of the other employers (who see the hiring of unauthorized employees as merely another cost to be passed on to the consumer) see the real burden in the competitive advantage that is held by those who do not bother to comply with the immigration law. 

It is this competitive advantage that keeps businesses which comply with the law from paying fair wages to their employees. It is this competitive disadvantage that burdens the thousands of businesses owned and operated by members of NumbersUSA.  And this also burdens the low-income employees who cannot receive fair wages under this system.

To hog-tie the State of Arizona and its businesses and citizens and keep them from seeking relief from this unfair situation by prohibiting the State of Arizona from requiring compliance with Congress's own statutes would, in fact, go against the intent of Congress to protect these legal workers and these law-abiding businesses.


This case involves a savings clause in an express preemption provision. The actions of the State of Arizona seeking to enforce federal law prohibiting hiring unauthorized aliens has put it and its citizens in the crossfire of immigration policy.

Congress crafted “employer sanctions,” a new package of prohibitions, enforcement mechanisms and penalties, also designed to prohibit the employment of unauthorized aliens. 8 U.S.C. § 1324a. The penalties under § 1324a for hiring unauthorized aliens are much less severe than those available under § 1324.

The employer sanctions were part of the grand compromise of the 1986 amnesty.

Section 1324a, however, includes an express preemption clause, with a “savings clause” for “licensing and similar laws”: “[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).

The State of Arizona enacted laws to enhance the effectiveness of the federal laws by providing both for the mandatory use of E-Verify for new hires and real sanctions for employment of unauthorized aliens.

Petitioners argue that the Arizona laws are preempted explicitly as being beyond the parameters of the savings clause and implicitly as being in conflict with the intent of Congress to avoid burdens to business and affect a balance between the interests of immigration enforcement and business needs.

However, the Petitioners reading of the savings clause is so narrow as to make it nearly non-existent.  Further, Congress’s intent in making the use of E-Verify voluntarily was not out of a concern for the burden it would cause businesses, but the costs it would cause the federal government without knowing its validity as a mechanism.  The facts make clear that E-Verify, in fact, relieves the considerable burden of I-9 compliance and failure at compliance.  Nor do Arizona’s laws conflict with Congressional intent even if it were to avoid a burden on businesses.

The real burdens on businesses is to comply with federal immigration laws without such a system causing both unfair advantaged for non-complying businesses and disruption of the workplace when the I-9 systems fails.  The other burden is on the workers of the state who potentially face discrimination and lower wages.

NumbersUSA's position has always been that mandating E-Verify is PRO-BUSINESS, at least PRO businesses that obey the law and that honor their communities.  Allowing some businesses to BREAK the law is always a case of government discrimination against the majority of businesses that are OBEYING the law.

Arizona and several other states have decided to stop the discrimination against businesses that obey the law and hire only Americans and legally-present immigrants.

If the Supreme Court rules in favor of the U.S. Chamber of Commerce, our efforts to help states reduce their unemployment rates will be made very, very difficult.

A victory in this case over the Chamber and the U.S. Justice Department, however, will open the door for massive new efforts to open up the jobs now held by illegal aliens.

-- ROY BECK is Founder & CEO of NumbersUSA

state enforcement

Updated: Tue, Jan 4th 2011 @ 8:05pm EST

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