WASHINGTON (May 31, 2011) – The Asian American Justice Center (AAJC) and Asian Pacific American Legal Center (APALC), members of the Asian American Center for Advancing Justice, expressed disappointment with Thursday’s 5-3 U.S. Supreme Court decision in Chamber of Commerce of the United States v. Whiting, which upheld an Arizona law imposing sanctions on employers who hire unauthorized workers and requires participation in the federal E-Verify system, a program piloted in 1997 that checks the work authorization status of employees against government records.
“We are disappointed that the Court failed to use this opportunity to invalidate a state enforcement mechanism that interferes with the federal government’s sole authority to regulate matters concerning illegal immigration,” said Karen K. Narasaki, president and executive director of AAJC. “One of the most troubling aspects of this type of state regulation is the potential for discriminatory practices—in this case, the disproportionate impact of the E-Verify system on authorized workers who may be perceived as ‘foreign.’”
Last September in collaboration with the San Francisco office of the law firm Pillsbury Winthrop Shaw Pittman, AAJC led nearly a dozen organizations in filing an amicus curiae, or friend-of-the-court, brief with the Court to support the Chamber of Commerce’s challenge to Arizona’s Legal Arizona Workers Act (LAWA). Other members of the Asian American Center for Advancing Justice–the Asian American Institute, Asian Law Caucus and APALC–joined the brief and were represented by Stanford University law professor Pamela S. Karlan.
Because of serious concerns about its accuracy, especially in cities with large immigrant communities, E-Verify has been used on a voluntary basis by employers. With an error rate at just under 1 percent, one out of every 100 legal job applicants could be found ineligible to work. According to the National Immigration Law Center, nearly half of those found ineligible will not be able to fix the problem even though they are citizens or legal workers. The reality is that the error rate may be much higher.
“The federal government’s own studies show that E-Verify is riddled with problems and has a disproportionate impact on naturalized citizens, foreign-born workers with employment authorization and workers with non-English surnames,” said Stewart Kwoh, president and executive director of APALC. “The Court’s decision undermines the good work of Congress to thwart discrimination against these workers.”
In Arizona when E-Verify has been used, 15 percent of the time the system incorrectly verified that someone did not have the legal right to work. For legal immigrants that number increased to 75 percent. It is important to note that if the number of errors with Arizona’s use of the E-Verify system were applied on a national scale, the mistakes would result in 1.2 million people incorrectly identified as not having the legal right to work. In Arizona alone, 189,343 AAPIs will be affected by the law.
“Now that all employers in Arizona will be required to use E-Verify, many workers in the state may soon be pushed into the underground economy,” noted Kevin Fong, a partner at Pillsbury Winthrop Shaw Pittman and counsel of record on the brief. “If other states follow Arizona’s lead, national employers may soon face different employment verification systems varying from state to state. All of this points to the need for a comprehensive federal solution as part of broad reform of the immigration system.”
Arizona enacted LAWA in 2008, and the U.S. Court of Appeals for the 9th Circuit upheld the law. In 2009, AAJC filed an earlier amicus brief in support of the Chamber of Commerce’s petition for the Supreme Court’s review of that decision.
The Court based its decision on a narrow exception to Congress’ exclusive authority to regulate and enforce immigration law, ruling that Arizona’s LAWA falls within an exception granting authority to states to regulate licensing. This ruling has no bearing on Arizona’s immigration law, SB 1070.
The negative impact of E-Verify is wide reaching and its potential problems should be a reminder to Congress that it is time to tackle our outdated immigration laws and enact comprehensive reform now.
The Asian American Center for Advancing Justice (www.advancingjustice.org) works to promote a fair and equitable society for all by working for civil and human rights and empowering Asian Americans and Pacific Islanders and other underserved communities, and is comprised of the Asian American Justice Center in Washington, D.C. (www.advancingequality.org), the Asian American Institute in Chicago (www.aaichicago.org), the Asian Law Caucus (www.asianlawcaucus.org) in San Francisco and the Asian Pacific American Legal Center (www.apalc.org) in Los Angeles.