Would a Nationally Imposed E-Verify System Infringe on Your Constitutional Rights?

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Let’s assume that you, our beloved reader, are of a common variety these days—you’re in the market for a new job. You’ve followed the posts of some of my colleagues at Law Street who have written extensively about The Search, and now you’re faced with a most enticing proposition, say… an interview! And more enticing still is the letter of intent now sitting on your table after having passed that interview (with flying colors, no less). You quickly sign your LOI and all the other forms handed to you as part of the initiation process. But, in your haste to ascend into the promised land of full-time employment, you’ve accidentally just ceded one of your constitutional rights. At least, that’s what say the opponents of E-Verify, the online protocol used by employers to determine worker eligibility.

Originally created for federal employers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, there are now 5 states that have mandated the use of E-Verify across both public and private sectors. They are Alabama, Arizona, Mississippi, South Carolina and Utah. In addition to information on I-9 forms, the system also asks for an applicant’s social security number and photo ID. The information is then run through a Department of Homeland Security database to make sure it checks out.

Like most states, Arizona legislators implemented mandatory E-Verify as part of an effort to curb illegal immigrants in the work place. But their efforts did not go unchallenged. Shortly thereafter, myriad plaintiffs across the business and civil rights sectors sued the state officials responsible for Legal Arizona Workers Act, alleging that the law should be preempted by the federal Immigration Reform and Control Act (IRCA) of 1986, and, as a result, null. The case eventually made its way up to the Supreme Court in 2011 in The Chamber of Commerce of The United States of America vs Whiting. However, in a 5-3 decision, the Court upheld the decision of the lower courts. They affirmed that, in this case, the Supremacy Clause did not apply. According to the court opinion, states are allowed to mandate the use of the electronic verification system as they see fit.

But as Congress duels over how to reform our national immigration system, the role of government enforcement in the workplace has once again come under review. The most successful piece of legislation thus far, the Border Security and Responsibility Act of 2013, now awaits House approval. If it becomes law (an unlikely feat given current political clout), it would bump from 5 to 50, the number of states that currently use the system.

Jim Harper, writing in response to a New York Times op-ed for the CATO institute, calls the questions raised by opponents of E-verify, “the natural consequence of dragooning the productive into enforcing maladjusted laws against free movement of people from a particular ethnic category to where their labor is most productive.”

Harper has come out against the program in the past; he famously referred to it as “Frank Kafka’s solution to illegal immigration.” Mind you, long before the 2013 global surveillance disclosures, Harper said that the expansion of the system “would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes.”

Furthermore, some say that instituting mandatory electronic verification would eschew the presumption of innocence which is so fundamental to 5th, 6th, and 14th amendments. By asking all prospective employees, who are mostly US citizens, to provide evidence to the effect that they are not guilty of illegal immigration is to incriminate a swath of people never before accused of wrongdoing.

If we are to allow DHS security checks in the workplace, where will it stop? And perhaps more alarming: where will it lead? The supermarket? The movies? Your home?

But alas, to the newly employed, and, more importantly, eligible US worker, these concerns are irrelevant. So congratulations on the new job! But don’t forget, next week are mandatory drug tests… hope you don’t mind.


Featured image courtesy of [Bram Cymet via Flickr]

Jimmy Hoover
Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at



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