PROVIDENCE – Companies that do business with the state will have to check their workers’ immigration status via the federal E-Verify system, under a ruling by R.I. Superior Court Judge Mark Pfeiffer. But not quite yet.
The judge mostly upheld the executive order issued in March by Gov. Donald L. Carcieri (READ MORE), in which he ordered all state vendors and contractors to use the controversial database to check the legal status of employees; ordered the R.I. Department of Administration to use E-Verify; and encouraged other state agencies to use the system.
On or about July 29, court papers show, the state began mailing notices to all individual and corporate vendors, ordering them to register with and begin using E-Verify within 45 days.
A lawsuit seeking to block the order was filed this month by the Rhode Island affiliate of the American Civil Liberties Union (ACLU), on behalf of the Rhode Island Coalition Against Domestic Violence (RICADV) and Rhode Island College professors Marie Mumm and Daniel Weisman, who object to being forced to participate in the program. (READ MORE)
The plaintiffs contended that the federally-run Internet database “returns inaccurate information regarding the immigration and employment status of new hires – and particularly, lawful foreign-born workers – at more than a minimal rate.” Their suit also said the E-Verify program is subject to abuse by employers, making it easier to discriminate against minority workers.
In addition, they accused Carcieri of violating the state constitution’s separation-of-powers doctrine, its contracts clause and the R.I. Administrative Procedure Act (APA)
In his decision yesterday, Judge Pfeiffer declined to block the Department of Administration from putting the order into effect. Based on documents filed in the case, he found it unlikely “that Governor Carcieri has violated the Separation of Powers Doctrine by encroaching on the powers of the General Assembly to enact laws regarding state contracts,” Pfeiffer wrote. “Nor, at this juncture, does the court conclude that it is more likely than not that the governor otherwise acted outside the scope of his executive authority.” And, he said, “the E-Verify mandate, while adding an additional administrative burden upon vendors doing business with the state, does not substantially alter the basic tenets of the contract.”
In a footnote to his decision, he described the plaintiffs’ concerns about the reliability of the E-Verify program – which critics contend returns many false results (READ MORE) – as both “speculative at this point” and “seemingly are not material” to the legal issues.
Pfeiffer also ruled, however, “that it is more likely than not that the APA was illegally circumvented by the DOA when it imposed the E-Verify requirement.”
The department “cannot insulate itself from compliance with the APA by characterizing it as a vendor-certification requirement. … An underlying rule embodying the Executive Order is necessary,” the judge wrote. “Accordingly, in implementing the Executive Order, DOA should have promulgated an E-Verify rule utilizing the notice and public comment requirements set forth in the APA.”
He therefore ordered the state government to refrain from firing businesses with existing contracts that decline to use the controversial database, until it has held public hearings on the new rules and issued guidelines for their enforcement. But, he added, “once a final rule is promulgated, presumably in a matter of weeks, the current vendors will need to adhere to the E-Verify certification process.”
Carcieri issued a statement saying “We are pleased with the judge’s decision to deny the temporary restraining order.”
The state Department of Administration “will immediately move forward to promulgate a purchasing regulation that expressly requires vendors who are doing business with the State of Rhode Island to use E-Verify,” his office added.
Beyond Cash Donations: How New Forms of Giving Are Transforming Not-for-Profit Accounting
Evolving Funding Landscape for Not-for-Profits Not-for-profit organizations are being asked to do more with less,…
Learn More
E-Verify, operated by the U.S. Department of Homeland Security’s Citizenship and Immigration Services in partnership with the U.S. Social Security Administration, is an Internet-based system for verifying eligibility to work in the United States. To learn more, visit www.dhs.gov.
Additional information about R.I. Superior Court, including the text of published decisions, is available from the R.I. Administrative Office of State Courts at www.courts.ri.gov.
