District court rules in favor of Homeland Security on E-Verify

A federal district court denied a motion by the U.S. Chamber of Commerce against the Homeland Security Department this week that alleged the department's program to electronically verify work eligibility of employees was illegal.

The U.S. District Court for Maryland, Southern Division ruled on Tuesday that DHS did not violate existing law by requiring all employers contracting with the federal government to use the E-Verify system to check the immigration status of new and existing employees to ensure their work eligibility.

The U.S. Chamber of Commerce claimed the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which included the E-Verify program as a statutory provision, prevents DHS Secretary Janet Napolitano from requiring anyone to use E-Verify, according to court documents.

"The court does not believe that the secretary of Homeland Security is requiring any person or entity to do anything," U.S. District Judge Alexander Williams Jr. said in his decision. Executive Order 13465 -- not the Homeland Security secretary -- dictated that contracts include a clause requiring contractors to use the designated system "if they wish to enter contracts with the government, which is a voluntary choice," Williams said.

The Chamber also alleged the executive order violated the 1980 Regulatory Flexibility Act, which requires the federal government to analyze the impact of regulatory actions on small businesses and organizations. The group argued that the order failed to account for the costs to "employers who, although they have previously complied in good faith with all existing immigration laws, must replace workers who become unauthorized to work solely by operation of the requirements imposed" by the executive order's final rule, which was issued initially in November 2008, but was delayed to Sept. 8, 2009.

The court determined that the costs of E-Verify on small businesses were properly considered in the final rule.

The Chamber of Commerce and civil liberties groups strongly disagreed with the decision.

"We thought this was fairly straightforward legal argument, given the status says it should be a voluntary system," said Chris Calabrese, counsel for the technology and liberty project at the American Civil Liberties Union. "Saying this is mandatory" for federal contracts conflicts with that requirement, "but the court did agree."

The decision "relied generally on the president's broad authority to make contract" decisions, Calabrese said. "It would be a more tenuous argument if it went beyond federal government," which some members in Congress support, he added.