[JURIST] A federal appeals court on Tuesday upheld [opinion, PDF] the majority of an injunction against an Oklahoma anti-illegal immigration law, but did permit the state to enact a provision whereby businesses would have to check their employment roster against a state list of eligible workers through a pilot program. The three-judge panel, sitting at the US Court of Appeals for the Tenth Circuit [official website], considered whether to uphold an injunction against the Oklahoma Taxpayer and Citizen Protection Act of 2007 [text, PDF], which required, among other provisions, three sections that were at the heart of the appeal: that businesses use a pilot program to verify the work authorization status of their employees (7B); that firing a US citizen or legal immigrant, while simultaneously employing an immigrant who is in the US unlawfully, be recognized as an unfair trade practice, giving the fired employee a private cause of action (7C); and that contractors verify the immigration status of their independent contractors, or withhold taxes from them (9). The panel found that federal law [8 USC § 1324 materials] preempted sections 7C and 9, but split on whether section 7B was similarly preempted, disagreeing as to whether state mandatory electronic verification of employee status conflicted with voluntary use of a federal database. In a concurrence that found no preemption of section 7B, Judge Kelly wrote:
Though E-verify is voluntary (as of yet) at the national level, it is not reasonable to assume that a mandatory program choice for state public contractors conflicts with Congressional purpose. ... To hold that the State is preempted from requiring such use in these circumstances reads too much into the federal government's provision of choice.
In upholding the injunction against the other provisions, the panel found that the plaintiffs had standing to challenge the suit and were likely to succeed on the merits, meaning the trial would continue in district court, though it is unknown when it will continue [Tulsa World report].
The national E-Verify system [official website] is a no-charge, Internet-based system that checks employee identification through either their Social Security Administration (SSA) number or a photographic match database. The voluntary E-Verify system differs from the mandatory "no match" system that the Department of Homeland Security (DHS) rescinded [JURIST report] in October. That system would have mandated that employers fire any employee whose information did not match SSA records. In a step towards reducing the voluntary nature of the E-Verify system, in July, DHS Secretary Janet Napolitano announced that the current administration supported regulations that would only supply contracts to employers who used the system [press release]. The E-Verify system was given its first boost when then-president George W. Bush signed an executive order [JURIST report] mandating that all federal agencies require those they contract with to use the system. That order was signed just one week after the US District Court for the Western District of Oklahoma enjoined the three disputed sections [JURIST report] of the Oklahoma Taxpayer and Citizen Protection Act.