On Aug 26 2009 by William A. Stock

Federal Court Upholds E-Verify Mandate for Federal Contractors

We have previously reported on a lawsuit by the US Chambers of Commerce and other groups that was decided today.  The lawsuit challenged  the amendments to the Federal Acquisition Regulations (FAR)  that require most companies with federal government contracts to enroll in the E-Verify system.  The FAR amendments were originally promulgated in November of 2008, and the Obama Administration has indicated it wants the amendments to take effect September 8, 2009.

The court was asked to rule on both sides’ motions for summary judgment – essentially, requests by both sides to end the lawsuit because the facts and law were clear.  The Chambers argued, essentially, that because Congress had made the E-Verify program voluntary, but the new Federal Acquisition Regulations made the program mandatory for federal contractors, the FAR amendments violated Congress’ express directive and were invalid.  The government’s argument, in essence, was that the FAR amendments did not make E-Verify mandatory – that a company could always choose not to seek federal contracts, in which case the company would not have to participate in E-Verify.

The court agreed with the government’s position, dismissing the Chambers’ lawsuit and clearing the way for the FAR amendments to go into effect on September 8, unless the Chambers appeal the court’s decision.

Congress may also get in the action, as the E-Verify program is still set to “sunset” as of September 30.  A provision extending the program (and providing explicit statutory authority for the FAR provision) was included in the Senate’s bill funding the Department of Homeland Security, but has not yet been enacted.