Employers, Rip Up Form I-9

Because it violates the due process clause of the Fifth Amendment to the U.S. Constitution, the INS requirement that all employers prove they have not hired any illegal aliens is void and has been since the requirement was first established in 1986. So far, however, no employers have found the Form I-9 process to be a heavy enough burden to challenge it in court.

"It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it...If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply," or so said Chief Justice John Marshall in 1801. In other words, Congress can pass whatever laws they want, but if those laws are contrary to the United States Constitution, then they are void as if they never existed. The law which requires employers to complete Immigration and Naturalization Service Form I-9 is clearly in that category.

Title 8 of the United States Code, Section 1324a, also known as the "Immigration Reform and Control Act of 1986," made it illegal for an employer to knowingly hire an "unauthorized alien", defined as "an alien who has not been lawfully admitted for permanent residence, or authorized to be so employed by this chapter or by the Attorney General." The same law created a requirement of all employers within the United States to positively establish that all employees are not "unauthorized aliens" and are authorized to work within the United States. The only accepted method of proving one's innocence of which most employers are aware is by use of the INS Form I-9, Employment Eligibility Verification.

In short, it is a crime to hire an illegal alien, and it is another crime to not prove your innocence before you are even charged with the first crime. It has been well established in the courts that it is a violation of the due process clause of the Fifth Amendment to assume guilt before the fact has been tried, but that is exactly what Congress and the INS have done. The requirement of all employers to prove they have not hired any illegal aliens and of all employees to prove they have not entered the country illegally is therefore of no legal effect and has been since the requirement was first established in 1986.

Human resource officers, you had better start ripping up those INS Form I-9s.