Arizona Ballott Propositions
Robb: Prop. 202 would gut sanctions law
ROBERT ROBB
Published: 09.22.2008
Some members of the Arizona business community are making a big bet with Proposition 202, the initiative to gut Arizona's system of sanctions for employers who consciously hire illegal immigrants.
The bet here is that they lose their bet big time, either this election or next.
If Arizona wants to do what it can as a state to cut off the access of illegal immigrants to the formal economy, the system the Legislature has adopted is sensible and workable.
Federal law, of course, already prohibits hiring illegal immigrants. But the enforcement mechanism is best described as a wink-and-a-nod approach.
Employers are required to ask for two forms of identification from workers they hire and submit a form to the federal government.
Sometimes the federal government will send back a letter indicating that Social Security has no record of such an individual with such a Social Security number. But employers don't have to do anything in response to these no-match letters.
So, under the existing federal law, an employer can easily hire, with little risk, illegal workers possessing phony documents.
The federal government has an electronic database of eligible workers that employers could use: E-Verify. But the feds make use of the system voluntary.
The Arizona law makes the use of E-Verify virtually mandatory. The law says that all Arizona employers must use the system, but provides no penalties for not doing so. Instead, it makes the use of E-Verify a rebuttable presumption against a new state offense of intentionally or knowingly hiring illegal immigrants.
The sanctions under the Arizona law are harsh. A first offense can result in a suspension of a company's business licenses. A second offense will result in their revocation.
Federal law, however, doesn't give the state much choice. It pre-empts all state sanctions except licensure.
Proposition 202 would gut the additional state requirement for employers and render the Arizona law useless.
Proposition 202 gives employers a nonrebuttable presumption against having intentionally or knowingly hired an illegal worker not only for using E-Verify, but also for using the current federal wink-and-nod system.
Nonrebuttable presumption means no amount of evidence to the contrary matters. If a state employer uses the federal wink-and-nod system, it's immune to state sanctions.
A more honest approach would have been simply to propose repealing the law.
The elements of the business community wanting to maintain access to an illegal work force by using the federal wink-and-nod system have been slandering the E-Verify system as faulty and prone to error.
However, the system confirms work eligibility 92 percent of the time within seconds. Most of the so-called "errors" are input mistakes, not the system pumping out false information.
To the extent there is a failure to confirm an eligible worker, it's usually because of the failure of the applicant to inform Social Security of changes, such as a name change after a marriage.
At the end of the process, the system fails to confirm the work eligibility of less than one-tenth of 1 percent of applicants. That's because illegal workers drop out before the end.
Proposition 202 should be easily defeated. However, getting the word out requires money, and it's not clear how much the opposition will raise.
But even if Proposition 202 supporters bamboozle the voters this election, that likely will only trigger an even more draconian law, by referendum or initiative, for the 2010 election.
There are two honest arguments against Arizona's employer sanctions law.
First, that the state shouldn't unilaterally disadvantage state businesses by giving them less access to illegal workers than competitors located elsewhere.
Second, that the state's economy needs the workers.
The Arizona electorate, however, hasn't been in the mood to buy those arguments. Instead, the push has been for the state to do what it can on its own to reduce the incidence and consequences of illegal immigration.
So, those who want to preserve access to an illegal work force through the federal wink-and-nod system will be making dishonest arguments for Proposition 202, a dishonest approach.E-mail Arizona Republic public policy and political columnist Robert Robb at robert.robb@arizonarepublic.com.
http://www.tucsoncitizen.com/daily/opinion/97318.php