Tenth Circuit Criticizes Controversial Oklahoma Immigration Law

Tenth Circuit Criticizes Controversial Oklahoma Immigration Law
U.S. Chamber Calls on Supreme Court to Clarify Confusion Over State Immigration Laws

WASHINGTON, D.C.—The U.S. Court of Appeals for the Tenth Circuit recently ruled that federal immigration law preempts most of the employer provisions of an Oklahoma immigration statute. However, the court split three ways on whether federal law bars states from mandating use of the voluntary E-Verify federal pilot program. The decision highlights the urgent need for clarification on the issue from the U.S. Supreme Court. The case is Chamber of Commerce, et al. v. Edmondson, et al.

"The Tenth Circuit's ruling on the important E-Verify question was hopelessly muddled," said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, the Chamber's public policy law firm. "The Supreme Court needs to step in and clarify whether states can set national immigration policy."

In June 2008, a federal district judge enjoined Oklahoma's immigration statute from going into effect. Yesterday, the U.S. Court of Appeals for the Tenth Circuit left the injunction mostly intact, agreeing unanimously that federal immigration law preempts two provisions of the Oklahoma statute that would have opened the door to a new type of discrimination lawsuit against businesses, and that would have imposed a punitive tax on businesses that do not verify the work eligibility of independent contractors.

But the three Tenth Circuit judges failed to reach an agreement on a third provision of the Oklahoma law, which mandates that all public contractors in Oklahoma must use E-Verify, a voluntary federal pilot program for electronically verifying employment eligibility. One judge held that the provision conflicts with federal law; another judge concluded that there was no conflict; and the third judge declined to decide the constitutional issue after concluding that one of the defendants, the Oklahoma Attorney General, lacks authority to enforce that portion of Oklahoma law. Nonetheless, the court left untouched the portion of the injunction barring the Oklahoma governor from enforcing the E-Verify provision.

"The Tenth Circuit explicitly disagreed with the Ninth Circuit's 2009 decision in Chamber of Commerce, et al. v. Candelaria, our challenge to an Arizona immigrant employment law which is pending before the U.S. Supreme Court," said Conrad. "The case adds to the tremendous confusion among the federal courts whether the flood of conflicting state and local immigration laws is constitutional."

NCLC is the public policy law firm of the U.S. Chamber of Commerce that advocates fair treatment of business in the courts and before regulatory agencies.

The U.S. Chamber of Commerce is the world's largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.

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