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Recently, the business community got a major wake-up call when the U.S. Supreme Court waded into the national immigration debate and upheld the now-infamous Arizona employer sanction law, the Legal Arizona Worker's Act of 2007. Chief Justice John Roberts, writing for the majority, said the Arizona law "falls well within the confines of the authority Congress chose to leave to the states." The high court further found that the Arizona law, which mandates that employers use the federal E-Verify system, was not preempted by the current federal law and that states do, in fact, have the right to punish employers found to have hired unauthorized workers by suspending or revoking their business licenses.
If you operate a convenience store or other retail establishment, you may have had your last good night of sleep. The court’s decision will certainly open a floodgate of state legislation across the country and further build momentum for national E-Verify legislation currently being drafted in Congress. While many states had Arizona-style legislation introduced this year, only a few states vigorously pursued passage, preferring to wait and see what the Supreme Court had in mind. Now that the Court has ruled, fasten your seatbelts because we are in for a wild ride in the foreseeable future.
The trick at the state level will be keeping states from straying outside the limits of the Supreme Court decision and venturing into territory that the court did not endorse. The decision clearly says that states can require employers to enroll in E-Verify and also have the authority revoke a business’ license as the penalty for non-compliance. It did not empower states to impose any other penalties on employers who hire unauthorized immigrants, such as fines or other sanctions. Additionally, it did not open the door to any other kind of state lawmaking on immigration, including tough policing measures like the ones passed in Arizona in 2010 that required local law enforcement to inquire about the immigration status of people they stop in connection with other possible legal violations.
The business community will have to be able to clearly understand and articulate what the court did and did not say, as employers find themselves in the crosshairs of immigration debates from coast to coast.
Pending action at the federal level is going to force some quick decision-making for the business community. House Judiciary Committee Chairman Lamar Smith (R-TX) is expected to introduce a bill in the coming weeks mandating that most or all employers across the country enroll in the E-Verify program. There will likely be significant support from elected officials who have traditionally been strongly "pro-business," and we will find some of the retail industry’s traditional friends on the opposing side of this important issue.
To make matters worse, there currently is a clear lack of alignment on E-Verify within certain sectors of the employer community, with divisions between agricultural and manufacturing, large and small operators, chains and independents -- the usual fissures that our industry representatives in Washington, D.C., and state capitols are forced to navigate.
But while it is unclear how it will all play out, one thing is very clear to those who have been closely involved in this issue across the country -- the E-Verify Train has not only left the station, it is barreling down the track like a runaway locomotive. It’s not a question of if; it is a question of when and whether it will look any different than the current program. (Hint: the answers are very soon and not very likely.)
The old arguments that the current E-Verify system has error rates that are too high, is punitive to even well-meaning employers and is difficult to utilize for small mom-and-pop operators remain as true as ever, and more irrelevant than ever, as far as the regulators are concerned. It’s the only game in town and employers are going to have to get on board and deal with it.
Our collective efforts should not be wasted on squandering our political capital in vain trying to derail the train, but earning a seat at the table and trying to make a national verification system something employers can live with. Our focus should not be on fighting E-Verify, but on ensuring implementation is reasonable and that employers are not exposed to broad punitive measures if, in fact, legitimate errors occur.
Often there is political value in making principled stands on issues despite the prevailing political winds and potential outcomes. Sometimes, losing the right way allows you to demonstrate your strong support for those who have supported you all along while gaining you the political credibility to be positioned for the next fight. This is not one of those times.
With the public in full support of aggressive immigration control measures and elected officials frantically trying to ride the disgruntled tiger that they helped create, we need to be smart and understand where our best opportunities lie and how we best protect our businesses going forward. An acknowledgement that E-Verify, as unreliable and imperfect as it may be, is the center of the conversation right now is a good, pragmatic place to start. Our willingness to pay that hefty price of admission will determine whether we are sitting at the table or lying on the tracks.
Joe Kefauver is managing partner of Parquet Public Affairs, a national issue management, communications, government relations and reputation assurance firm that specializes in service sector industries. Parquet's clients include Fortune 500 corporations, trade associations, regional businesses and non-profit organizations. For more information, go to www.ParquetPA.com.
Editor's note: The opinions expressed in this article are the author's, and do not necessarily reflect the views of Convenience Store News.