Employer-sanction foes spar with court
By Howard Fischer
Capitol Media Services
Tucson, Arizona | Published: 06.13.2008
SAN FRANCISCO — Federal appellate judges expressed skepticism Thursday at the contention by foes of Arizona's new employer sanctions law that the state cannot do what it is doing.
Jonathan Weissglass, arguing before a 9th Circuit Court panel on behalf of business and civil-rights groups, said the federal government has almost exclusive power over not just immigration, but also the penalties that can be imposed on companies that knowingly hire undocumented workers.
Judge John Walker said, though, the current system does not work. In fact, he said, the process companies now use to verify whether workers are in the country legally "has been shown to be ripe with fraud."
"So now Arizona wishes to have a better system, a more effective system for this state," Walker said. "I still don't see how that can be a problem."
"It's Congress' decision about how to reform laws governing the employment of immigrants," Weissglass responded.
"Where does it say that, that the states are prohibited from enforcing employer sanctions?" Walker shot back.
Weissglass warned that allowing each state to enact and enforce its own employer sanctions law would have wide-ranging ripple effects, "Balkanizing our immigration laws and dramatically increasing the burden on employers."
"This case will set the law that will decide whether every state and locality can do this," he said. And that, Weissglass said, creates special problems for national firms that will have to deal with what could be different laws in each state.
The law, which took effect Jan. 1, requires all companies doing business in Arizona to check the legal status of new workers through the federal government's E-Verify system.
Of greater concern to employers is that the law allows a state judge to suspend or revoke any and all state licenses and permits of firms found guilty of knowingly hiring undocumented workers. A second violation within three years puts the company out of business in Arizona.
U.S. District Judge Neil Wake rejected challenges to the law, setting up Thursday's appeal.
Weissglass said one problem with the law is, it lets a state judge decide whether the worker is here legally, a power he argued is vested only in federal hearing officers and judges.
But Judge Mary Schroeder, who is an Arizonan, told him the state is not trying to set some definition of "undocumented worker" that is different from federal law.
Weissglass, however, said the sanctions under federal law generally are in the form of fines. Arizona's statute, he said, "provides for the business death penalty." He also noted when Congress approved the E-Verify system it made participation by employers voluntary.
Judge N. Randy Smith said all that presumes is that members of Congress never intended to let states enact their own laws on employment of illegal immigrants and their own mandates for what procedures Arizona employers must follow.
"I can't find it in the law to suggest that they didn't want this to happen," he said.
That is the contention of state Solicitor General Mary O'Grady who asked the three-judge panel to uphold the law.
She said there is nothing unusual about Arizona barring companies from knowingly hiring undocumented workers. She pointed out such employer actions have been illegal under federal law since 1986.
"The variation might be the sanctions," she said, pointing out that though Congress did bar states from imposing civil and criminal penalties against violators, it "specifically permitted" states to take action against the licenses of firms that break the law.
O'Grady also dismissed Weissglass' argument Arizona can't force companies to check the legal status of new workers through the E-Verify system.
"(Congress') goal was to establish an effective verification system because there were concerns the (existing employer verification) system wasn't effective," O'Grady said. "They wanted to come up with something better."
And O'Grady noted President Bush, just this past week, issued an executive order requiring all companies with federal contracts check the status of workers through that E-Verify system.






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