As I worried in my piece American Jobs For American Workers—No Compromise On E-Verify!, Judiciary chair Lamar Smith has indeed compromised with the Chamber of Commerce and included state preemption language to his otherwise-admirable Legal Workforce Act.

In exchange for support from the Chamber of Commerce, National Home Builders Association, and National Restaurant Association, Smith inserted Section 6 to the Legal Workforce Act. It states:

"PREEMPTION- The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, insofar as they may now or hereafter relate to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens. A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system described in subsection (d) to verify employment eligibility when and as required under subsection (b)."

In English, this means that a state can only take away a business license of an employer of illegal aliens if the Federal government finds it guilty first. 

FAIR President Dan Stein lays out the obvious problem with "preemption":

"E-Verify's effectiveness depends upon the willingness of the administration to enforce the law…If this administration – or any future one – continues to obstruct immigration enforcement, states must retain the right to implement and enforce their own laws that sanction employers who knowingly hire illegal aliens. The ideal bill mandates E-Verify nationally while allowing states to retain the right to enforce the law and protect their citizens."

Still, FAIR seems to more or less support the Smith bill. But other immigration patriots have come out strongly against it.

Congressman Lou Barletta, after fighting the American Civil Liberties Union in court for over five years to uphold the Hazleton Illegal Immigration Relief Act, and finally winning less than two weeks ago, is not keen now to see the law nullified. He is vowing to lead the fight against it in Congress. He says:

"The federal government knows the states and cities will enforce the law because they're the ones bearing the brunt of illegal immigration, and the American people know the federal government won't enforce its own immigration laws.  The Legal Workforce Act is a slap in the face of states like Arizona; Georgia; and Alabama; and cities like Hazleton, Pennsylvania; Valley Park, Missouri; and Fremont, Nebraska. The Legal Workforce Act pretends to solve the problem of illegal immigration, but in reality it will make it worse. I strongly oppose the Legal Workforce Act, and I'm encouraging my colleagues to do the same. This bill must be stopped."

Arizona Senate President Russell Pearce, who authored the recently-upheld Legal Arizona Workers Act which will also be voided by this bill, has expressed similar concerns in an op-ed in the Politico:

"We already have plenty of laws against hiring illegal immigrants, which the federal government does not enforce. There is virtually no chance that President Barack Obama will enforce the Legal Workforce Act any more than he, or for that matter President George W. Bush, enforced our other immigration laws. While we cross our fingers that Obama will enforce the Legal Workforce Act, Arizona and the other states already enforcing the law will be prevented from doing so." [Ariz. law is best on immigration, June 17, 2011]

Kansas Secretary of State and immigration lawyer Kris Kobach, who helped craft and defend the two laws,  writes in the New York Post that "If Smith's bill passes, it will be 1986 all over again."[Another amnesty? | New bill hobbles border states, June 16, 2011]

In contrast, NumbersUSA's Roy Beck and Center for Immigration Studies' Mark Krikorian have both vigorously defended the bill. 

Beck writes that he shared the above concerns, but

"the history of E-Verify leads us to believe that this law will be different. The fact is that over a quarter of a million employers have already chosen to use E-Verify voluntarily, with another 1,300 joining each week. Once all employers are required to use it, we believe that the vast majority of employers will, because they actually want to obey the law, especially if it is easy."

Krikorian, while noting some states might have a small net loss in enforcement, writes in National Review

"The point is that, though this is a concession, it isn't a big thing to give away in exchange for all employers in all states to use E-Verify in hiring. Remember, California, New York, New Jersey, Illinois, Maryland, and Washington State are among the top-12 illegal immigration states that will never pass E-Verify mandates on their own and they account for close to half the illegal population (and I'm not optimistic about Texas or Florida, numbers 2 and 3 in the size of the illegal population). So we're trading away a state power of very limited utility in exchange for a national standard that will prevent most illegals from finding new jobs (the majority of illegal aliens work on the books, not for cash, and thus are vulnerable to E-Verify)."[Link in original.]

Krikorian concludes,

"This is a restrictionist moment, with a Republican House, a committed and knowledgeable Judiciary Committee chairman, lots of vulnerable Democratic senators, and a Democratic president up for reelection with 9 percent unemployment. Let's not let our moment pass." [Links added.]

My position: I am on the fence right now.  I was initially completely dead set against the bill, but Roy Beck's point about the likely large increase in E-Verify usage, even if the feds do not stringently enforce the law, has made me think twice about it.

However, even if I end up agreeing that "pre-emption" for E-Verify might be an acceptable compromise, I don't see why Rep. Smith needs to give it to the Treason Lobby at the get-go—if we are in such a "restrictionist moment".  

As I noted before, these same business lobbyists now endorsing the bill with preemption acknowledged that the law bill could pass without their support.

At the very least, I believe Smith should have tried to pass with bill without the preemption language.

Then I might be willing to accept it as a compromise if it materialized that immigration patriots could not get it through.

Lamar Smith is considered to be a hardliner on immigration. But this bill will need to still go through the Democratic Senate and be signed by Obama if it's to become law.

There is an alarming possibility that, having already given away the first bargaining chips, Treason Lobby Democrats will try to tie the DREAM Act and/ or guest workers to the bill.

"Washington Watcher" [email him] is an anonymous source Inside The Beltway.