At Volokh Conspiracy, Stewart Baker notes that the “E-Verify” program,” which “electronically checks to make sure a … newly hired employee’s name matches his social security number, is one of the few interior immigration enforcement measures that works, does so humanely, and has significant bipartisan support.” Expanding E-Verify is one of the likelier areas of immigration legislation in the current Congressional session. And three states have mandated E-Verify for all businesses (see map).
But those state mandates are in trouble in the Supreme Court–which is another way of saying they are in trouble with swing Justice Anthony Kennedy, according to Baker:
Justice Kennedy seemed to telegraph his views throughout the argument, and they were split. He was waveringly sympathetic to the state licensing requirement, but he had no sympathy at all for the state’s e-Verify mandate. Here’s what he said to the state’s lawyer:
JUSTICE KENNEDY: But you are taking the mechanism that Congress said will be a pilot program that is optional, and you are making it mandatory. It seems to me that’s almost a classic example of a State doing something that is inconsistent with the Federal requirement.
If Kennedy votes the way Baker suspects he will, it wouldn’t kill E-Verify–it would just require Congress to make it clear, in a new law, that states can mandate the program if they want to. Something for the Republican Congress to do. P.S.: Would Obama dare to veto that bill? (A: No. It’s too popular. But it’s so popular he’d reflexively try to hold it hostage for some kind of “down-payment-on-amnesty” provision, such as the DREAM Act.)