Federal Preemption on Immigration

I wrote, on Sept. 23, to Senator Coburn asking that he do all in his power to effect a clean reauthorization of the E-Verify system. On Sept. 29 I received from Senator Coburn's office, and under his signature, a reply concluding with the following two paragraphs:

Please let me assure you that I am strongly supportive of this extension. This is the only tool our employers have currently to help them stay in compliance with the law. I will vigorously work the rest of the year to ensure that E-VERIFY does not expire.

If we are to take any measurable action in curbing illegal immigration, one of the first things we must do is to turn off the job magnet and eliminate employment incentives - this is why an employer verification system is an essential part of any immigration reform. However, as long as the system is voluntary, we will not have a level playing field. I am aware of this problem and an immediate solution must be found. In addition, we must secure our borders and reform our visa system. I will continue to work for sensible immigration reform and I appreciate any additional feedback you may have. It is imperative we end illegal immigration if we are to maintain the security and prosperity of our nation. (emphasis mine)

Well, I'm not sure what to Senator Coburn's mind constitutes a "measurable action in curbing illegal immigration," but for my part a reduction of 1.3 million illegals in a single year IS "measurable" and significant. If we stayed on pace, in just five years the number would be reduced by a full half.

For our purposes here, however, I want to focus on the italicized statements in Senator Coburn's reply to me. As a United States Senator, Senator Coburn must mean, in his comments, that he intends to push for a federal initiative to make registration with E-Verify mandatory, thus creating a "level playing field" between state and state, employer and employer, individual and individual.

As a strong advocate for a (gradual) return to balanced constitutional government -- which would include, in part, a return to state initiated immigration law and law enforcement -- I have a bit of a problem with Senator Coburn's "top-down" approach to this issue. However, I do understand, I think, why Senator Coburn and other immigration restrictionists would feel compelled to take this position. In this connection let us look at this CIS article from September 16:

Another court rejects challenge to mandatory use of E-Verify
By Jessica Vaughan, September 16, 2008

Yesterday, a Rhode Island judge rejected a request from the ACLU and three others to halt the state’s implementation of Governor Don Carcieri’s Executive Order requiring all state contractors, vendors, and grantees to use E-Verify, or lose their government contracts. This ruling, while preliminary, is the latest positive test of strength, both for the E-Verify program and for state action to prevent illegal employment.

The ruling is noteworthy for several reasons:

1. The court appears to have ignored the main complaints from the ACLU and other plaintiffs (a domestic violence non-profit and two college professors who have contracts with the state to provide professional services) that E-Verify is “riddled with significant flaws” and “inaccurate”. Actually, the independent evaluations of E-Verify, one by the research firm Westat and the other by the Social Security Administration’s inspector general, have found the E-Verify is remarkably accurate. (See my recent testimony for more information with links to the Westat and SSA/IG report). It provides swift confirmation for eligible workers – 99.4% are confirmed on the first try. It also accurately identifies illegal workers – of all the workers who are flagged as possibly ineligible on the first try, 95% turn out to be illegal.

2. The judge stated clearly that the Governor has the authority to require state contractors and others named in the order to use E-Verify.

3. Interestingly, the ACLU did not try to argue that the Governor’s order was pre-empted by federal law, which has been one of the most common objections that opponents of immigration law enforcement have raised against state-level immigration initiatives. ...(emphasis mine)

In this case I'd like to focus our attentions on no. 3 in Miss Vaughan's list of noteworthy items attending this particular court ruling.

Indeed, as Vaughan says, this has been one of the most common objections raised against state and local initiatives on immigration. Arizona's law was challenged on this basis in the Ninth Circuit U.S. Court of Appeals, and Oklahoma's law was challenged on the same basis in the Tenth Circuit Court. And as you all know the two cases have resulted in very different outcomes. Somehow I get the feeling that these disparate lower court rulings are bound to wind up in the U.S. Supreme Court for final settlement. I won't venture a guess as to what the outcome will ultimately be, but if past history (particularly over the last hundred or so years -- I think I smeall that pesky fourteenth amendment again.) is any indication, we may safely assume that federalism, as a governing principle in America, will receive, in this case, yet another death blow. To wit:

Increasingly, lawmakers in states and localities within the United States are proposing, and in some cases enacting, laws and ordinances that would, in effect, enforce existing federal immigration law or create new immigration law. The localities claim that they simply are passing laws pertaining to the
state or locality’s power to regulate licensing, contracting, or the like. These state and local laws — which their authors dress up as laws to regulate housing, employment, and local law enforcement — are in actuality attempts to regulate immigration. Almost all of the proposed state and local initiatives are preempted by the federal government’s exclusive authority to regulate immigration and are therefore unconstitutional.

This fact sheet explains general preemption principles and provides immigrant rights advocates with analytical tools for determining whether anti-immigrant initiatives proposed in their states and localities can be legally challenged on preemption grounds. (emphasis mine)

I don't really care to get into a discussion about the constitutionality/unconstitutionality of a given law or governmental principle. As I've said so many times before, this term "unconstitutional" is greatly overused from both the left and the right. What it generally boils down to, by my experience, is that if you think a law or some ruling principle is wrong or unfair or immoral, or whatever, then to you it is unconstitutional, and vice versa.

I simply reject the idea that the federal government has "exclusive" authority over the matter of immigration. And I damn sure object to the idea propagated by this organization that all that is needed for our masters the federal government to secure to itself exclusive authority in this matter is for the Congress to simply act to occupy the field. Taken to its logical conclusion, this makes all state powers subject to the whims of the federal Congress. What a dangerous, unAmerican concept!

I could, and probably should, say a lot more on this subject. But for the time being I'm going to end the entry here. Suffice it to say that while I'm an admirer of Senator Coburn and I appreciate much of what he's done as a U.S. Senator, I don't think I can get on board with his implied solution to the immigration crisis. And I've written him to this effect.