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N.Y. County's Bill Would Penalize Contractors Who Hire Illegal Aliens
Michael Scholl
New York Law Journal
September 13, 2006

The Suffolk County Legislature in New York is poised to vote on a bill that would permit the county to fine contractors who employ immigrants not authorized to work in the United States.

Suffolk County Executive Steve Levy said he introduced the bill in an effort to deter employers from hiring illegal immigrants. He claims the measure is necessary because the federal government is failing to adequately enforce the Simpson-Mazzoli law, a 1986 federal statute formally known as the Immigration Reform and Control Act.

The Suffolk law would require companies doing business with the county to sign affidavits stating that they have complied in good faith with the requirements of the Simpson-Mazzoli law, which requires employers to examine and retain copies of documents that confirm the identity and immigration status of each employee.

Under the Levy bill, county contractors who submit false affidavits would be guilty of a class A misdemeanor punishable by a fine of between $250 and $2,000 and a jail term of six months. Contractors also would be subject to civil penalties of up to $5,000 for each day an ineligible worker is on their payroll.

In addition, contractors who persistently violate the proposed law would be subject to having their county contracts terminated.

The measure includes a provision that allows employers to escape penalties if they can establish that they made a good faith effort to obey the law but were fooled by an employee or employees who presented forged documents.

The Suffolk County Department of Labor would be charged with enforcing the measure, which would take effect on Jan. 1, 2007.

The Levy bill, which is co-sponsored by Republican legislator Joseph Caracappa and Democratic legislators Jack Eddington, Louis D'Amaro and Wayne Horsley, has drawn intense opposition from a diverse group that includes immigrant advocates, business leaders, labor unions, clergy and the New York Civil Liberties Union, which argues that the bill is unconstitutional because it calls for the county to take on an enforcement role in an area of law that is subject to federal jurisdiction.

But the legislation also has received passionate support from Suffolk residents who fear the county is being overrun by illegal immigrants.

About 30 of the bill's supporters, including one man in an Uncle Sam costume who held a sign reading "Deport Illegal Aliens," appeared at a public hearing on Sept. 5 outside the William H. Rogers Building in Hauppauge, where the Suffolk Legislature meets.

"The fact is the president, whose job it is to enforce immigration law, is not doing so," said Sue Grant, a Farmingville resident who testified at the public hearing. "It is now up to the citizens to encourage local governments and the state to pass legislation to deal with this lack of enforcement."

Members of the public who support the bill were outnumbered at the hearing by about 60 residents who oppose it. But Levy, a Democrat, is pressing ahead and has expressed confidence that the Legislature, which has a 10-8 Democratic majority, will pass the law when it meets Sept. 19.

LOCAL LAWS APPROVED

If the bill is passed, Suffolk County will join a growing list of communities that have approved local laws that penalize government contractors who employ illegal immigrants.

One of those communities is Hazelton, Pa., which on July 13 passed an ordinance that would deny city contracts and business permits to companies that employ undocumented aliens and calls for fines of up to $1,000 to be imposed on landlords who rent to illegal immigrants.

Enforcement of the Hazelton ordinance has yet to begin because the city is fighting a court challenge to the law. But similar ordinances have already been passed by four other Pennsylvania towns and by Riverside, N.J., and Valley Park, Mo., according to the Puerto Rican Legal Defense and Education Fund, a group that opposes the ordinances.

While enforcement of immigration law is normally a federal concern, Suffolk's chief deputy county executive, Paul Sabatino II, said there were a number of reasons why his county should become involved in the effort.

Sabatino said passage of the bill, along with the passage of similar bills in other jurisdictions, would have the beneficial effect of prodding the federal government to take its responsibilities to enforce the Simpson-Mazzoli Act more seriously.

He added that the measure also would address inequities caused by the employment of illegal immigrants.

Employers who hire illegal immigrants at low wages have an unfair advantage over companies that comply with the law, said Sabatino, who said the bill would "level the playing field" by making it more difficult for companies to engage in unfair labor practices that exploit immigrant workers.

Sabatino also said Suffolk County has an interest in ensuring that its limited funds are not spent with companies that act in violation of federal law.

"County funds should not be used to facilitate illegal activity," he said.

Sabatino noted that Suffolk already enforces federal immigration laws at its county jail, where sheriff's deputies have been trained to screen for inmates who appear to be in the United States illegally. Those inmates are reported to the federal authorities and are subject to deportation.

But the NYCLU and other opponents of the Levy bill say the measure, if enacted, would violate the U.S. Constitution because it would be pre-empted by federal immigration law.

In support of that argument, Andrea Kallan, a Suffolk resident and an official with the NYCLU, cited the supremacy clause of the U.S. Constitution, which says the Constitution and the laws passed by Congress are the "supreme law of the land." In addition, Article I of the Constitution grants the federal government the exclusive authority to "establish a uniform rule of Naturalization," while the Supreme Court, in DeCanas v. Bica, 424 U.S. 351 354-355 (1976), has held that the "power to regulate immigration is unquestionably exclusively a federal power."

"State and local governments simply do not have the authority to make laws of the kind that are being debated here," Kallan said.

Opponents of the measure have also argued that it will lead to discrimination against legal immigrants and others who appear to be from foreign countries because employers will be reluctant to hire people from certain ethic backgrounds for fear of violating the law.

Sabatino said Levy's bill includes provisions forbidding discrimination. He also argued that the U.S. Constitution does not prohibit local governments from requiring its contractors to certify that they are in compliance with federal law.

Sabatino said the bill was on "solid ground" constitutionally and would survive the legal challenges that opponents are expected to bring against it if it passes.

"We're prepared to vigorously defend it," he said.