Having just read Arizona v. U.S (June 25, 2012) and having re-read in its light the Mississippi Employment Protection Act, Miss. Code Ann. 71-11-3 (2008), and the Supreme Court’s 2011 Chamber of Commerce v. Whiting opinion, it seems clear that part of Mississippi’s law cannot be enforced and that another part is imperiled, but that Mississippi’s E-Verify mandate still should survive a pre-emption challenge.
Criminalization of Unlawful Work
Like the Arizona law, Miss. Code Ann. 71-11-3 (8) (c) (i) imposes criminal penalties on an alien who works without USCIS authorization. The Supreme Court deems that a transgression of Congressional authority because Congress decided to impose only civil penalties.
Another section of Mississippi’s law is called fairly into question by the Supreme Court’s majority reasoning. A state law imposing immigrant hiring penalties upon employers is subject both to express pre-emption analysis under 8 U.S.C. 1324a (h) (2) and to the sweeping (perhaps ahistorical, see Justice Scalia’s dissent) implied pre-emption analysis used by Justice Kennedy in holding Arizona law section 5(C) pre-empted. Section 1324a (h) (2) permits states to impose on employers of illegals penalties “through licensing and similar laws,” but forbids other “civil or criminal sanctions.” Miss. Code Ann. 71-11-3 (4) (d) imposes employment discrimination liability on an employer that dismisses an authorized worker while retaining an unauthorized worker. This would appear to be a pre-empted civil sanction.
In Chamber of Commerce v. Whiting (2011), the Supreme Court approved Arizona legislation making immigration law compliance and E-Verify use a condition of state business licenses, due to the pre-emption carve-out of 8 U.S.C. § 1324a (h) (2). While the pre-emption reasoning in this week’s opinion is sweeping, it does not appear to call that 2011 decision into question. Thus, Mississippi should remain able to enforce its E-Verify mandate for state contractors, a contract being a quasi-license. And Mississippi employers other than state contractors still face the prospect of business license loss if they employ an illegal alien and have not used E-Verify.