Robb: Winning the battle of attrition
Sanctions law will succeed in getting immigrants to leave
Tucson Citizen



The immigration debate is about to get a reality check in Arizona as the state's employer sanctions law went into effect last week.
The legal challenge to the state law, by business and pro-immigration groups, seems to have been poorly lawyered. Poor lawyering can always be a problem, but it is particularly inopportune before the meticulous Neil Wake, the federal judge considering this matter.
In early December, Wake dismissed the challenge essentially for having sued the wrong people. The plaintiffs were seeking an injunction against the enforcement of the law. But they didn't sue the county attorneys, who, under the act, have the enforcement responsibility.
The plaintiffs refiled the lawsuit, this time naming the county attorneys, and asked for a temporary restraining order against the law's enforcement while the new challenge and an appeal of Wake's initial decision were being considered. Wake rejected that request late last month.
The new state law provides for the suspension and revocation of licenses for businesses found to have knowingly or intentionally employed illegal immigrants. The strongest basis of the legal challenge is that federal law pre-empts such a state sanction.
Federal law states, in relevant part, that its penalties and processes "pre-empt any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ . . . unauthorized aliens."
Those challenging the law contend that the state can suspend or revoke licenses only after there has been a federal adjudication that the business has employed illegal immigrants.
There's a certain logic to their position. If Congress intended for states to have parallel enforcement authority, it makes no sense to deny them smaller sanctions, such as fines, but let them use the nuke, the revocation of the right to do business.
However, that interpretation requires, as Wake reportedly pointed out in oral argument, reading into the federal law words that don't appear there.
And Wake seems pretty dead set against doing that. In his most recent decision, he writes that "plaintiffs have little chance of prevailing on their conflict pre-emption argument."
Wake will consider and rule on the full merits of the legal challenge later this month, but he seems strongly inclined to leave the law alone.
There's a chance the Ninth Circuit Court of Appeals will step in at some point. But the best guess is that Arizona employers will have to live with the law for some period of time.
Meanwhile, the Maricopa County Sheriff's Office has gotten trained and is enforcing federal immigration law. Other local police departments are inching toward more enforcement authority or at least more active cooperation with federal authorities. A ballot measure may force them into even more aggressive action.
That means that Arizona is at least beginning to implement the attrition strategy devised primarily by the Center for Immigration Studies. The attrition strategy is its answer to the question of how do you deport 12 million illegal immigrants?
You don't. Cut off access to the formal economy and increase law enforcement pressure and, just as illegal immigrants made a rational decision to come here, a large number of them will make a rational decision to leave, goes the argument.
Now, I don't believe that the attrition strategy is the best policy, at least at a national level. I think the balance of equities favors amnesty.
But I think it will, in large measure, work.
Opponents of the state employer sanctions law are predicting dire consequences. Innocent businesses are going to be given the death penalty. Investment will dry up and the economy will shrivel.
I suspect these predictions are badly overstated. Fewer workers do mean less economic output. There will be dislocations. Agriculture and construction will face particularly tough transitions.
However, the new law provides strong protections for employers who electronically verify new hires and take seriously no-match letters for their existing work force.
Low-wage workers are a relatively small component of the price structure even in sectors where illegal workers are currently a significant part of the labor pool.
Arizona will remain an attractive place to do business. State businesses will figure out how to continue to make and build things and provide services.
That, however, is just my theory. In Arizona, immigration theories may be about to get some useful field tests.


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E-mail Robert Robb at robert.robb@arizonarepublic.com

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